Pub Date : 2022-05-16DOI: 10.22329/wyaj.v37i1.7283
Sunam Jassar
Health disparity in Canada is continuing to grow with marginalized communities being disproportionately affected. Policies and actions implemented by the federal government have been ineffective in addressing underlying causes of poor health. Framing access to justice as a social determinant of health is a necessary first step to establish a comprehensive and interdisciplinary approach to address poor health outcomes. Through an analysis of the limitations of access to justice as a legal term and the application of access to justice in health outcomes, this article hopes to foster further collaboration between the medical and legal communities in this area. art I of this paper argues the need to expand the scope of access to justice beyond the legal realm. Part II highlights the increasing health disparity within Canada and critiques the current approach. Part III outlines the ways in which health disparity can be improved if access to justice is recognized as a social determinant of health. The paper concludes with discussing progress that can be made in both the legal and medical community as a result of widening the scope of access to justice. Through an analysis of the limitations of access to justice as a legal term and the application of access to justice in health outcomes, this paper hopes to foster further collaboration between the medical and legal communities in this area.
{"title":"Access to Justice as a Social Determinant of Health: The Basis","authors":"Sunam Jassar","doi":"10.22329/wyaj.v37i1.7283","DOIUrl":"https://doi.org/10.22329/wyaj.v37i1.7283","url":null,"abstract":"Health disparity in Canada is continuing to grow with marginalized communities being disproportionately affected. Policies and actions implemented by the federal government have been ineffective in addressing underlying causes of poor health. Framing access to justice as a social determinant of health is a necessary first step to establish a comprehensive and interdisciplinary approach to address poor health outcomes. Through an analysis of the limitations of access to justice as a legal term and the application of access to justice in health outcomes, this article hopes to foster further collaboration between the medical and legal communities in this area. art I of this paper argues the need to expand the scope of access to justice beyond the legal realm. Part II highlights the increasing health disparity within Canada and critiques the current approach. Part III outlines the ways in which health disparity can be improved if access to justice is recognized as a social determinant of health. The paper concludes with discussing progress that can be made in both the legal and medical community as a result of widening the scope of access to justice. Through an analysis of the limitations of access to justice as a legal term and the application of access to justice in health outcomes, this paper hopes to foster further collaboration between the medical and legal communities in this area. ","PeriodicalId":56232,"journal":{"name":"Windsor Yearbook of Access to Justice","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44615866","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-05-16DOI: 10.22329/wyaj.v37i1.7284
Sean Robertson
In the wake of the Truth and Reconciliation Commission, Indigenous peoples and non-Indigenous Canadians find themselves aspiring towards transitional justice. Yet they do so with a democracy in need of some repair. One prime site for fostering democratic renewal – the post-secondary sector – is under pressure from corporatization and political forces working to narrow freedom of expression and academic freedom. This sector, however, continues to offer some hope through liberal, anti-oppressive, anti-colonial, and Indigenous pedagogies that promote a public ethical responsibility beyond the self. Yet encouraging these pedagogies is not straightforward, including for those teaching courses such as Aboriginal law in a blended learning format. In the context of the spread of online education and the dearth of scholarship on anti-oppressive pedagogies therein, on the one hand, and the reluctance of legal educators to adopt anti-colonial pedagogies, on the other, there is an urgency to build knowledge about how to develop citizenship education. Anti-colonial citizenship education includes content about the establishment of settler society and the status of Indigenous nations. Furthermore, it is operationalized through active learning practices. Based on Indigenous and non-Indigenous pedagogical theories, these practices are argued to support a tripartite “intellectual framework” comprised of critical thinking, collaboration, and self-directed learning. Through a case study of an undergraduate course, the argument is made for the efficacy of a number of active learning practices to produce this intellectual framework. It is suggested that, in addition to better learning outcomes, an anti-colonial citizenship education is materialized insofar as the intellectual framework inspires a sensibility for complexity and independent thinking, “civic culture,” and autonomous inquiry and openness to alternative epistemologies.
{"title":"Practising an Anti-Colonial Citizenship Education Through a Blended Learning Course on Aboriginal Law","authors":"Sean Robertson","doi":"10.22329/wyaj.v37i1.7284","DOIUrl":"https://doi.org/10.22329/wyaj.v37i1.7284","url":null,"abstract":"In the wake of the Truth and Reconciliation Commission, Indigenous peoples and non-Indigenous Canadians find themselves aspiring towards transitional justice. Yet they do so with a democracy in need of some repair. One prime site for fostering democratic renewal – the post-secondary sector – is under pressure from corporatization and political forces working to narrow freedom of expression and academic freedom. This sector, however, continues to offer some hope through liberal, anti-oppressive, anti-colonial, and Indigenous pedagogies that promote a public ethical responsibility beyond the self. Yet encouraging these pedagogies is not straightforward, including for those teaching courses such as Aboriginal law in a blended learning format. In the context of the spread of online education and the dearth of scholarship on anti-oppressive pedagogies therein, on the one hand, and the reluctance of legal educators to adopt anti-colonial pedagogies, on the other, there is an urgency to build knowledge about how to develop citizenship education. Anti-colonial citizenship education includes content about the establishment of settler society and the status of Indigenous nations. Furthermore, it is operationalized through active learning practices. Based on Indigenous and non-Indigenous pedagogical theories, these practices are argued to support a tripartite “intellectual framework” comprised of critical thinking, collaboration, and self-directed learning. Through a case study of an undergraduate course, the argument is made for the efficacy of a number of active learning practices to produce this intellectual framework. It is suggested that, in addition to better learning outcomes, an anti-colonial citizenship education is materialized insofar as the intellectual framework inspires a sensibility for complexity and independent thinking, “civic culture,” and autonomous inquiry and openness to alternative epistemologies.","PeriodicalId":56232,"journal":{"name":"Windsor Yearbook of Access to Justice","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43661955","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-05-16DOI: 10.22329/wyaj.v37i1.7192
Katie Sykes, Rebecca Dickson, Sarah Ewart, Candice Foulkes, Marina Landry
British Columbia’s new Civil Resolution Tribunal [CRT] is a primarily online dispute resolution system that has attracted international attention for its innovative approach. But so far there has been little independent research on the effectiveness of the CRT and similar online dispute resolution initiatives in providing access to justice. In a qualitative and exploratory study, we surveyed 49 British Columbians who had used the CRT about their experience with the process. Overall, the results suggest that the CRT has improved access to justice, but the survey answers also identified problems and concerns, for which we suggest potential solutions.
{"title":"Civil Revolution: User Experiences with British Columbia’s Online Court","authors":"Katie Sykes, Rebecca Dickson, Sarah Ewart, Candice Foulkes, Marina Landry","doi":"10.22329/wyaj.v37i1.7192","DOIUrl":"https://doi.org/10.22329/wyaj.v37i1.7192","url":null,"abstract":"British Columbia’s new Civil Resolution Tribunal [CRT] is a primarily online dispute resolution system that has attracted international attention for its innovative approach. But so far there has been little independent research on the effectiveness of the CRT and similar online dispute resolution initiatives in providing access to justice. In a qualitative and exploratory study, we surveyed 49 British Columbians who had used the CRT about their experience with the process. Overall, the results suggest that the CRT has improved access to justice, but the survey answers also identified problems and concerns, for which we suggest potential solutions. ","PeriodicalId":56232,"journal":{"name":"Windsor Yearbook of Access to Justice","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48694995","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-05-16DOI: 10.22329/wyaj.v37i1.7280
Julie E. DeWolf
Sex worker parents often lose custody of their children. The purpose of this research was to study theimpact of a parent’s status as a past or present sex worker on judicial decision-making in custody and access disputes. Through doctrinal legal research, I explored judicial treatment of sex workers involved in custody and access disputes in Child Protection and Family Law case law from Ontario. I reviewed every reference to parental involvement in sex work from Child Protection and Family Law decisions from January 2010-March 2020. Parental involvement in sex work was often presented as an unfavourable aspect of the parent, or otherwise had a negative influence on their claim. Sex work was treated as a negative quality in a parent rather than an aspect of their life warranting further factual exploration. I argue that stigma against sex workers appears to carry more weight in custody and access disputes than evidence concerning the impact that a parent’s sex work has on a child.
{"title":"Sex Workers and the Best Interests of their Children: Issues Faced by Sex Workers Involved in Custody and Access Legal Proceedings","authors":"Julie E. DeWolf","doi":"10.22329/wyaj.v37i1.7280","DOIUrl":"https://doi.org/10.22329/wyaj.v37i1.7280","url":null,"abstract":"Sex worker parents often lose custody of their children. The purpose of this research was to study theimpact of a parent’s status as a past or present sex worker on judicial decision-making in custody and access disputes. Through doctrinal legal research, I explored judicial treatment of sex workers involved in custody and access disputes in Child Protection and Family Law case law from Ontario. I reviewed every reference to parental involvement in sex work from Child Protection and Family Law decisions from January 2010-March 2020. Parental involvement in sex work was often presented as an unfavourable aspect of the parent, or otherwise had a negative influence on their claim. Sex work was treated as a negative quality in a parent rather than an aspect of their life warranting further factual exploration. I argue that stigma against sex workers appears to carry more weight in custody and access disputes than evidence concerning the impact that a parent’s sex work has on a child.","PeriodicalId":56232,"journal":{"name":"Windsor Yearbook of Access to Justice","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43926185","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-05-16DOI: 10.22329/wyaj.v37i1.7193
Hassan Ahmad
In the recent past, the ability to challenge Canadian government action with foreign relations elements has spilled over from administrative law into tort law. At the same time, tort actions against multinational corporations for human rights violations abroad have also seen a surge in Canadian courts, culminating in the Supreme Court’s recent decision in Nevsun Resources Ltd. v. Araya. This article addresses some doctrinal elements of a potential transnational tort claim against the Canadian government and a Canadian arms manufacturer pursuant to human rights violations arising from the 2014 Canada-Saudi Arms Deal [CSAD]. It also explores consequential effects that Canada’s burgeoning transnational tort laws can have on Canada-Saudi relations as well as the Canadian defence industry. Overall, this article uses the CSAD as one real-life scenario in which private law litigation can have broader effects on a country’s foreign relations and domestic economy. In this instance, the judiciary’s power to exact extra-judicial consequences illustrates how tort litigation can curtail the behaviour of governmental and commercial actors.
{"title":"Judicializing Foreign Affairs: The Canada-Saudi Arms Deal and the Implications of Transnational Tort Litigation","authors":"Hassan Ahmad","doi":"10.22329/wyaj.v37i1.7193","DOIUrl":"https://doi.org/10.22329/wyaj.v37i1.7193","url":null,"abstract":"In the recent past, the ability to challenge Canadian government action with foreign relations elements has spilled over from administrative law into tort law. At the same time, tort actions against multinational corporations for human rights violations abroad have also seen a surge in Canadian courts, culminating in the Supreme Court’s recent decision in Nevsun Resources Ltd. v. Araya. This article addresses some doctrinal elements of a potential transnational tort claim against the Canadian government and a Canadian arms manufacturer pursuant to human rights violations arising from the 2014 Canada-Saudi Arms Deal [CSAD]. It also explores consequential effects that Canada’s burgeoning transnational tort laws can have on Canada-Saudi relations as well as the Canadian defence industry. Overall, this article uses the CSAD as one real-life scenario in which private law litigation can have broader effects on a country’s foreign relations and domestic economy. In this instance, the judiciary’s power to exact extra-judicial consequences illustrates how tort litigation can curtail the behaviour of governmental and commercial actors. ","PeriodicalId":56232,"journal":{"name":"Windsor Yearbook of Access to Justice","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41986096","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-05-16DOI: 10.22329/wyaj.v37i1.7195
D. Netolitzky, Richard Warman
This article reports a quantitative and statistically reliable population investigation of 552 Federal Court of Appeal proceedings that were appeals by represented and self-represented appellants who, in 2016 or 2017, appealed decisions of the Federal Court or Tax Court of Canada. Appeals by the Crown, non-Crown represented appellants, and self-represented appellants exhibited markedly different frequencies at which appeals were granted, and patterns for how appeals were terminated. Nearly half of Crown appeals were granted, but less than one in twenty self-represented appellants had any degree of success. While 70% of appeals conducted by lawyers completed the appeal process, less than 40% of self-represented appellant proceedings resulted in a full appeal panel hearing. Incomplete appeals by self-represented appellants usually terminated prior to the appeal record stage, and typically were either abandoned or discontinued. The time required to complete appeals for represented and self-represented appellants is similar. The high observed frequency of problematic litigation records for self-represented appellants supports the hypothesis that a “Distillation Effect” is concentrating abusive litigants in appellate forums. High resolution investigation of self-represented appellant subgroups revealed differences within the overall self-represented appellant population. Self-represented appellants emerging from the Federal Court and Tax Court of Canada are different populations. The former were much more likely to have an abusive litigation history, while the latter voluntarily discontinued appeals, and were never subject to Federal Court of Appeal vexatious litigant management steps. Self-represented appellant proceedings that terminated prematurely or that were conducted by persons who are subject to court access restrictions had significantly more filed documents and docket records. Litigation management steps did not reduce the Registry and Court workload resulting from self-represented appellants subject to court access restrictions. These observations challenge modelling self-represented litigants as a single population with uniform characteristics.
{"title":"As the Water Grinds the Stone: Comparison of Represented and Self-represented Appellant Populations in the Federal Court of Appeal","authors":"D. Netolitzky, Richard Warman","doi":"10.22329/wyaj.v37i1.7195","DOIUrl":"https://doi.org/10.22329/wyaj.v37i1.7195","url":null,"abstract":"This article reports a quantitative and statistically reliable population investigation of 552 Federal Court of Appeal proceedings that were appeals by represented and self-represented appellants who, in 2016 or 2017, appealed decisions of the Federal Court or Tax Court of Canada. Appeals by the Crown, non-Crown represented appellants, and self-represented appellants exhibited markedly different frequencies at which appeals were granted, and patterns for how appeals were terminated. Nearly half of Crown appeals were granted, but less than one in twenty self-represented appellants had any degree of success. While 70% of appeals conducted by lawyers completed the appeal process, less than 40% of self-represented appellant proceedings resulted in a full appeal panel hearing. Incomplete appeals by self-represented appellants usually terminated prior to the appeal record stage, and typically were either abandoned or discontinued. The time required to complete appeals for represented and self-represented appellants is similar. The high observed frequency of problematic litigation records for self-represented appellants supports the hypothesis that a “Distillation Effect” is concentrating abusive litigants in appellate forums. \u0000High resolution investigation of self-represented appellant subgroups revealed differences within the overall self-represented appellant population. Self-represented appellants emerging from the Federal Court and Tax Court of Canada are different populations. The former were much more likely to have an abusive litigation history, while the latter voluntarily discontinued appeals, and were never subject to Federal Court of Appeal vexatious litigant management steps. Self-represented appellant proceedings that terminated prematurely or that were conducted by persons who are subject to court access restrictions had significantly more filed documents and docket records. Litigation management steps did not reduce the Registry and Court workload resulting from self-represented appellants subject to court access restrictions. These observations challenge modelling self-represented litigants as a single population with uniform characteristics.","PeriodicalId":56232,"journal":{"name":"Windsor Yearbook of Access to Justice","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48960260","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-05-16DOI: 10.22329/wyaj.v37i1.7281
Brea Lowenberger, Heather D. Heavin, Jessica M. McCutcheon, Melissa Nelson
Improving access to justice in Canada’s justice system is often the impetus for introducing new innovations or changing existing systems. However, measuring the effectiveness of these initiatives to improve access to justice is challenging without a common language to help identify and define the elements of access to justice, and without a common framework to help guide the measurement and evaluation of whether improvements are being realized. This paper seeks to contribute to the access to justice measurement discourse by highlighting an access to justice evaluation framework that has been developed with the triple aim objectives of improving population access to justice, improving user experience of access to justice, and improving costs. We also demonstrate how this framework has been used as part of the planning and evaluation of the Listen Project in Saskatchewan, illustrating how this framework can be universally adapted to other projects and initiatives throughout the justice sector.
{"title":"Measuring Improvements in Access to Justice: Utilizing an A2J Measurement Framework for Comparative Justice Data Collection and Program Evaluation Across Canada","authors":"Brea Lowenberger, Heather D. Heavin, Jessica M. McCutcheon, Melissa Nelson","doi":"10.22329/wyaj.v37i1.7281","DOIUrl":"https://doi.org/10.22329/wyaj.v37i1.7281","url":null,"abstract":"Improving access to justice in Canada’s justice system is often the impetus for introducing new innovations or changing existing systems. However, measuring the effectiveness of these initiatives to improve access to justice is challenging without a common language to help identify and define the elements of access to justice, and without a common framework to help guide the measurement and evaluation of whether improvements are being realized. This paper seeks to contribute to the access to justice measurement discourse by highlighting an access to justice evaluation framework that has been developed with the triple aim objectives of improving population access to justice, improving user experience of access to justice, and improving costs. We also demonstrate how this framework has been used as part of the planning and evaluation of the Listen Project in Saskatchewan, illustrating how this framework can be universally adapted to other projects and initiatives throughout the justice sector.","PeriodicalId":56232,"journal":{"name":"Windsor Yearbook of Access to Justice","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42001456","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-05-16DOI: 10.22329/wyaj.v37i1.7198
C. Dauda, Danielle McNabb
In this article we examine sentencing in 14 Ontario cases of possession of child pornography between 2007 and 2017 with the purpose of understanding the sentencing process in relation to the fundamental principle of proportionality and other principles employed to arrive at a fair, individualizing process as set out in Canadian sentencing law. In all cases the offenders are charged with possession only and have no prior offences. We situate these cases within the context of sentencing reform in general and child pornography law specifically, including the evolution of mandatory minimums, as they have evolved in both legislation and case law. Our cases cover two periods of mandatory minimums, 45 days and six months. Although we consider numerical sentences, probation and ancillary conditions awarded when examining our cases, we are interested in the process of determining the sentencing components. We analyse this process in two ways: by observing the judicial reasoning in calculating the seriousness of the crime and the blameworthiness of the offender and the balancing of other purposes and principles, particularly rehabilitation and parity; and, by considering three pairings of cases, each with similar quantity and quality of images, to compare the calculation of risk and its effect on determining the blameworthiness of the particular offender. Our findings reveal a polarization in judicial reasoning between a punitive process in which overemphasis of denunciation and deterrence and extreme versions of the reasoned apprehension of harm add weight to the seriousness of the crime on a par with contact abuse, and a more tempered and restrained one in which possession is considered on its own and other purposes and principles are weighed, such as rehabilitation and parity, to arrive at a more individualizing process. Mandatory minimums are no constraint as sentencing is much lengthier, especially under the 45-day mandatory minimum. In pairing like cases in terms of collections of images and videos we find a very subjective process in the calculating of risk in which like offenders are treated differently in terms of assessments of blameworthiness, based on questionable forensic methods and assumptions. Finally, we note the resources involved in investigative time, incarceration and the supervising of probation as well as lengthy ancillary conditions that may last decades after sentencing.
{"title":"Getting to Proportionality: The Trouble with Sentencing for Possession of Child Pornography in Ontario","authors":"C. Dauda, Danielle McNabb","doi":"10.22329/wyaj.v37i1.7198","DOIUrl":"https://doi.org/10.22329/wyaj.v37i1.7198","url":null,"abstract":"In this article we examine sentencing in 14 Ontario cases of possession of child pornography between 2007 and 2017 with the purpose of understanding the sentencing process in relation to the fundamental principle of proportionality and other principles employed to arrive at a fair, individualizing process as set out in Canadian sentencing law. In all cases the offenders are charged with possession only and have no prior offences. We situate these cases within the context of sentencing reform in general and child pornography law specifically, including the evolution of mandatory minimums, as they have evolved in both legislation and case law. Our cases cover two periods of mandatory minimums, 45 days and six months. Although we consider numerical sentences, probation and ancillary conditions awarded when examining our cases, we are interested in the process of determining the sentencing components. We analyse this process in two ways: by observing the judicial reasoning in calculating the seriousness of the crime and the blameworthiness of the offender and the balancing of other purposes and principles, particularly rehabilitation and parity; and, by considering three pairings of cases, each with similar quantity and quality of images, to compare the calculation of risk and its effect on determining the blameworthiness of the particular offender. Our findings reveal a polarization in judicial reasoning between a punitive process in which overemphasis of denunciation and deterrence and extreme versions of the reasoned apprehension of harm add weight to the seriousness of the crime on a par with contact abuse, and a more tempered and restrained one in which possession is considered on its own and other purposes and principles are weighed, such as rehabilitation and parity, to arrive at a more individualizing process. Mandatory minimums are no constraint as sentencing is much lengthier, especially under the 45-day mandatory minimum. In pairing like cases in terms of collections of images and videos we find a very subjective process in the calculating of risk in which like offenders are treated differently in terms of assessments of blameworthiness, based on questionable forensic methods and assumptions. Finally, we note the resources involved in investigative time, incarceration and the supervising of probation as well as lengthy ancillary conditions that may last decades after sentencing.","PeriodicalId":56232,"journal":{"name":"Windsor Yearbook of Access to Justice","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46739913","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-12-15DOI: 10.22329/wyaj.v37i0.6565
R. Dhand, A. Szigeti, Maya Kotob, Michael Kennedy, Rebecca Ye
People with mental health and addiction issues are disproportionately affected by COVID-19 given the elevated risk of contracting COVID-19 within psychiatric facilities. The impact of the pandemic on this extraordinarily vulnerable population includes the potential for large outbreaks and multiple deaths. There is also the increased risk of serious psychological harm, exacerbating pre-existing mental health and substance use issues and in turn elevating their risk to themselves and/or others. In Part I of this paper, we analyze the procedural barriers to access to justice that arose as a result of the initial responses to COVID-19 by the Consent and Capacity Board [CCB] and the Ontario Review Board [ORB]. In Part V, we include a brief report on how appeals taken from both tribunals have been handled throughout COVID-19 to date. In Part VI, we analyze the discretionary and systemic barriers experienced by people with mental health and addiction issues appearing before the CCB and ORB during COVID-19. We critique recent mental health law cases during COVID-19 where deprivations of liberty interests and substantive equality have occurred, and access to justice for people with mental health and addictions issues has been denied, suspended or impaired. Through a legal analysis of how the pandemic has impacted this vulnerable community of litigants, we hope this research will result in further advocacy and education to prevent outbreaks and death, improve health care practices, and increase access to justice.
{"title":"Litigating in the Time of Coronavirus: Mental Health Tribunals’ Response to COVID-19","authors":"R. Dhand, A. Szigeti, Maya Kotob, Michael Kennedy, Rebecca Ye","doi":"10.22329/wyaj.v37i0.6565","DOIUrl":"https://doi.org/10.22329/wyaj.v37i0.6565","url":null,"abstract":"People with mental health and addiction issues are disproportionately affected by COVID-19 given the elevated risk of contracting COVID-19 within psychiatric facilities. The impact of the pandemic on this extraordinarily vulnerable population includes the potential for large outbreaks and multiple deaths. There is also the increased risk of serious psychological harm, exacerbating pre-existing mental health and substance use issues and in turn elevating their risk to themselves and/or others. In Part I of this paper, we analyze the procedural barriers to access to justice that arose as a result of the initial responses to COVID-19 by the Consent and Capacity Board [CCB] and the Ontario Review Board [ORB]. In Part V, we include a brief report on how appeals taken from both tribunals have been handled throughout COVID-19 to date. In Part VI, we analyze the discretionary and systemic barriers experienced by people with mental health and addiction issues appearing before the CCB and ORB during COVID-19. We critique recent mental health law cases during COVID-19 where deprivations of liberty interests and substantive equality have occurred, and access to justice for people with mental health and addictions issues has been denied, suspended or impaired. Through a legal analysis of how the pandemic has impacted this vulnerable community of litigants, we hope this research will result in further advocacy and education to prevent outbreaks and death, improve health care practices, and increase access to justice.","PeriodicalId":56232,"journal":{"name":"Windsor Yearbook of Access to Justice","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41332727","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-12-15DOI: 10.22329/wyaj.v37i0.6560
Karen Bellehumeur
Our method for combatting sexual violence in Canada is failing. Survivors of sexual violence have lost confidence in the criminal justice system as evidenced by the extremely low reporting rate to the police. While victims generally wish to hold perpetrators accountable, their reluctance to engage the criminal justice system is a clear indication that the cost (psychologically and emotionally) is too high. Survivors need more protection from re-traumatization and something must change in order to hold perpetrators accountable and deter sexual violence. In this article I propose a fully funded confidential trauma-informed model of victim representation for survivors of sexual violence to better protect their rights and facilitate equal access to justice. I find support for my proposed model by looking to systems of victim representation internationally, in the U.S. Military and in the International Criminal Court. Studies of these models demonstrate that they more meaningfully engage victims with the justice system and mitigate harm in various ways. I also demonstrate why the criticisms of these models are unwarranted. Finally I provide an analysis regarding equality rights under the Canadian Charter and outline why our current process is discriminatory and undermines the equality of women. I conclude that allowing legal representation offers overwhelming value and empowerment to survivors of sexual violence by improving their protection from harm and increasing their access to justice. I further postulate that providing this support to survivors could increase the reporting rate for sexual violence and thereby contribute to reducing the rate of sexually offending with impunity.
{"title":"A Former Crown’s Vision for Empowering Survivors of Sexual Violence","authors":"Karen Bellehumeur","doi":"10.22329/wyaj.v37i0.6560","DOIUrl":"https://doi.org/10.22329/wyaj.v37i0.6560","url":null,"abstract":"Our method for combatting sexual violence in Canada is failing. Survivors of sexual violence have lost confidence in the criminal justice system as evidenced by the extremely low reporting rate to the police. While victims generally wish to hold perpetrators accountable, their reluctance to engage the criminal justice system is a clear indication that the cost (psychologically and emotionally) is too high. Survivors need more protection from re-traumatization and something must change in order to hold perpetrators accountable and deter sexual violence. In this article I propose a fully funded confidential trauma-informed model of victim representation for survivors of sexual violence to better protect their rights and facilitate equal access to justice. I find support for my proposed model by looking to systems of victim representation internationally, in the U.S. Military and in the International Criminal Court. Studies of these models demonstrate that they more meaningfully engage victims with the justice system and mitigate harm in various ways. I also demonstrate why the criticisms of these models are unwarranted. Finally I provide an analysis regarding equality rights under the Canadian Charter and outline why our current process is discriminatory and undermines the equality of women. I conclude that allowing legal representation offers overwhelming value and empowerment to survivors of sexual violence by improving their protection from harm and increasing their access to justice. I further postulate that providing this support to survivors could increase the reporting rate for sexual violence and thereby contribute to reducing the rate of sexually offending with impunity.","PeriodicalId":56232,"journal":{"name":"Windsor Yearbook of Access to Justice","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42715997","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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