Doctor of Philosophy in Law (PhD)
Placing Muslim Women within the Affirmative Consent Standard in Canadian Sexual Assault Law
The current discourse around supported decision making and the Convention on the Rights of persons With Disabilities has challenged medico-legal guardianship and the mental capacity construct at its conceptual core, re-conceptualising decision-making as a skill which can be developed and/or enabled through practice and support. Two major gaps in the supported decision making paradigm have precluded a true paradigm shift, however: a failure to consider the needs of persons unable to express will or preference of any kind in relation to day to day tasks, and a failure to consider exploitation through the high-jacking of mere choices (i.e. non-genuine decisions) by others. The phenomenological nature of dementia intersects with the distinctive relationship and social contexts of old age to make these gaps especially meaningful in the context of dementia in old age. While a guardianship model that includes substitute decision-making would fill these gaps, the theoretical and practical problems associated with the current medico-legal guardianship model must be addressed. Using the methodology of pragmatic inquiry, this study proposes re-thinking adult guardianship as a response to vulnerability (the impaired performance of thinking processes in connection with an individual’s social, relationship and material contexts), and sets out a preliminary guardianship model constructed on that basis.
In 1983, the law of sexual assault in Canada was significantly reformed. Among a number of significant changes, rape was replaced by sexual assault and penetration was not a requirement of any of the sexual assault offences. The purpose of this thesis is to reflect on the role of penetration in Canadian sexual assault law, notwithstanding that it no longer forms part of the definition of sexual offences. In particular, I explore the impact of removing the penetration requirement in Canada, thinking carefully about the consequences of incorporating penetration as a defining element of sexual assault offences. I consider whether penetration is more appropriately considered as a relevant factor in sentencing where judges assess the seriousness of a particular offence. Secondly, through an examination of case law, I investigate judicial narratives about penetration in sentencing decisions, focusing on whether and how judges assess the seriousness of a sexual assault through reference to penetration in sentencing. Ultimately, I argue that while a penetration-centred model reifies gendered and heterosexist assumptions about sexuality, the Canadian approach to penetration challenges these assumptions and helps to dismantle them. Likewise, the Canadian approach is more effective from a fair labelling perspective at communicating the gravity of the wrongfulness of sexual assault to both offenders and complainants. As such, I contend that it is more appropriate for penetration to be considered at sentencing, rather than being part of the definition of sexual offences, as this allows for greater nuance. However, I argue that judges, when considering penetration as an aggravating factor at sentencing, must take care not to use penetration as the sole determinant of severity. The present study indicates that the distinctions based on penetration that were removed from the substantive law in 1983 may be recreated at sentencing. As a consequence, it is possible that current sentencing practices in Canada may reproduce “real rape” narratives that undermine the severity of sexual assaults, particularly those that do not involve penile penetration of the vagina or anus. I contend that penetration should be but one aggravating factor that is considered alongside other potential aggravating and mitigating factors.
Within Canadian criminal law, the mental disorder defence grants exemptions fromcriminal liability to those who commit criminal acts while suffering from a mental disorder thatrenders “the person incapable of appreciating the nature and quality of the act or omission or ofknowing that it was wrong.” Unlike traditional defences, the mental disorder defence does notresult in an outright acquittal and unconditional release. Instead, those who satisfy therequirements of the defence are found “not criminally responsible on account of mental disorder”(NCRMD) and become subject to the jurisdiction of a provincial Review Board, which is taskedwith reviewing the case of each NCRMD accused annually and deciding whether each accusedshould be discharged absolutely, discharged with conditions, or detained in a hospital for thepurpose of treatment. The Review Board also has jurisdiction over those found unfit to standtrial, but these accused are outside the scope of this thesis.This thesis examines decision-making by the British Columbia Review Board in initialdisposition decisions relating to NCRMD accused in 2015 and 2016. A quantitative analysissuggests that the best predictors of disposition in these cases are the sex, age, and diagnosis ofthe accused. A review of the contents of the Review Board’s decisions confirms the importanceof the accused’s mental health status, but also reveals a concern for the accused’s criminalhistory and ongoing substance abuse. The Review Board is highly focused on risk assessmentand the protection of the public to the exclusion of other considerations, including those listed inthe governing legislation. This thesis examines this focus on public safety and calls for theintroduction of measures to better balance the interest of the NCR accused with those of thepublic. It concludes with a discussion of the implications of this focus on public safety and calls for the introduction of measures to better balance the interests of the accused with those of thepublic.
Persons with mental disabilities make up a significant proportion of the prison population in Canada. In addition to being a group that is subject to discrimination and disadvantage generally in this country, individuals with mental disabilities are particularly vulnerable as prisoners and suffer serious adverse consequences from incarceration not experienced by other prisoners. Individuals with mental disabilities are being sent to prison at an increasing rate, despite recognition in the jurisprudence that the presence of a mental disability will in many cases reduce an offender’s moral blameworthiness for her actions. This Thesis explores these issues through a review of social science literature, legal academic writing and jurisprudence. It concludes that an inconsistent application of sentencing principles developed through the common law and increasing implementation of “tough on crime” legislation by Parliament has resulted in many offenders with mental disabilities being sent to prison, despite the fact that in many circumstances alternatives to incarceration would be a more equitable result and better ensure ongoing public safety.The second part of my Thesis proposes potential revisions to the Criminal Code’s sentencing provisions that could assist in combating the problem of over-incarceration of mentally disabled offenders. These proposals include a requirement that sentencing judges must in every circumstance consider the unique circumstances of offenders with mental disabilities, including both the impacts of mental disability on their behaviour and the systemic discrimination faced by this group in a variety of socioeconomic spheres. The second proposal is a legislative exemption to mandatory minimum sentences for offenders with mental disabilities, based on the principle that individualized and proportionate sentences are crucial for these offenders to avoid perpetuating discrimination based on mental disability in the criminal justice system. A final proposed revision would give judges an increased ability to order conditional sentences for this group of offenders, as a counter to the increased legislative limitations on the use of this potentially beneficial sentencing alternative.