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.
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.