Equality & Incrementalism: The Role of Common Law Reasoning in Constitutional Rights Cases
It is often said that the Charter ushered in a progressive new era in Canadian law. When this assertion is made the implication is usually that the common law remains a largely conservative or stabilizing force in Canadian law, and that principled change under the Charter holds more promise than the incrementalism of the common law method. But progressives also know that principled constitutional change carries its share of risks, including the risk that rapid, large-scale constitutional change will be met with backlash from government and from citizens, and that the interests sought to be advanced through constitutional litigation might ultimately be worse off. In this paper we argue that courts are justified in adopting an incremental approach to constitutional cases, but only if that approach is infused with the Charter value of substantive equality. We then analyze (Attorney General) v Bedford, the Ontario Court of Appeal’s recent decision on the constitutionality of the prostitution provisions of the Criminal Code, through the lens of an equality-centered approach to incrementalism. We conclude that the Court of Appeal’s judgment contains serious deficiencies from the standpoint of equality. In particular, the majority leaves intact the one provision that specifically targets street sex workers, leaving the most vulnerable sex workers at risk of criminal prosecution and without a remedy. A proper application of common law method, informed by the Charter values of equality and inclusion, would have led the Court of Appeal to a different result, while still grounding the case in the legitimacy of the common law.
Reconceptualizing Vagrancy and Reconstructing the Vagrant: A Socio-Legal Analysis of Criminal Law Reform in Canada, 1953-1972
This article explores significant reforms to the vagrancy section of the Criminal Code during the mid-to-late twentieth century. By locating the reforms within their unique social, political, and economic climates, I examine how they reconceptualized the offence of vagrancy and concomitantly reconstructed the vagrant as a social problem. The reforms played a seminal role in reducing the number of vagrancy offences, eventually leading to the demise of vagrancy in the criminal law. Yet, while the "vagrant" ceased to exist in the law, the law still continues to preserve vestiges of the vagrant in a highly gendered manner.
Adolescent sexual offenders: incidence of childhood maltreatment, serious emotional disturbance, and prior offenses.
Adolescents incarcerated for sexual offenses were compared to those incarcerated for other crimes on measures of prior child abuse and neglect, serious emotional disturbance, and involvement in child welfare and the juvenile justice system. Sexual or physical abuse was more common than neglect among sexual offenders with fewer than three prior maltreatment reports. Sexual offenders were twice as likely to be receiving special education services for severe emotional disturbance, and were usually incarcerated later than other offenders. Implications for research and practice are discussed.