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This paper is a feminist judgment in R v JA (Supreme Court of Canada 2011), a spousal sexual assault case involving the issue of whether parties can consent in advance to sexual activity that will occur while they are asleep or unconscious. The Supreme Court’s ruling in JA has generated critique and debate amongst feminist and law and sexuality scholars that pits women's equality and security interests against their affirmative sexual autonomy. Using the methodology of a feminist judgment, I endeavour to analyze whether it is possible to adopt an approach to advance consent that protects or at least balances all of these interests. My particular focus is the spousal context, where courts have often interpreted the sexual assault provisions of the Criminal Code to the detriment of women’s sexual integrity and equality, yet where arguments about affirmative sexual autonomy have also predominated. Taking a harm-based approach to criminality that considers both negative and positive sexual autonomy, the judgment concludes that advance consent should not be considered valid without certain legal safeguards being put into place.Este artículo es una sentencia feminista de R v JA (Tribunal Supremo de Canadá 2011), un caso de agresión sexual conyugal que implica la cuestión de si las partes pueden consentir de antemano una actividad sexual que ocurrirá mientras están dormidos o inconscientes. El fallo de la Corte Suprema en JA ha generado críticas y debates entre feministas e investigadores en derecho y sexualidad, que enfrentan los intereses de igualdad y seguridad de la mujer con su autonomía sexual afirmativa. Utilizando la metodología de un juicio feminista, se intenta analizar si es posible adoptar un enfoque de consentimiento anticipado que proteja, o al menos equilibre, todos estos intereses. El enfoque particular es el contexto conyugal, donde los tribunales han interpretado a menudo las disposiciones sobre el asalto sexual del Código Penal en detrimento de la integridad sexual y la igualdad de las mujeres, incluso también donde también han predominado los argumentos sobre la autonomía sexual positiva. A partir de un acercamiento a la criminalidad basado en el daño, que considera la autonomía sexual negativa y positiva, la sentencia concluye que el consentimiento previo no debe ser considerado válido sin que se pongan en práctica ciertas garantías legales. DOWNLOAD THIS PAPER FROM SSRN: https://ssrn.com/abstract=2891024
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Benedet, J. (2019). Judicial Misconduct in the Sexual Assault Trial. U.B.C. Law Review, 52(1), 1–56.
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Citizenship is a key factor in the development of national identity. Any system for establishing and defining citizenship is meaningless as a tool for the creation of such an identity, however, without control of the mechanisms by which this system is designed and implemented. In this paper I propose to examine the constitutional status of an Aboriginal right to control the design and implementation of citizenship codes. As the judiciary in Canada begins to grapple with questions of Aboriginal self-determination, it must begin to consider the extent to which its own vision of Canada as a constitutional democracy, currently engaged in a project of reconciling Aboriginal peoples to the sovereignty of the Crown, will set out parameters for locating and constructing such a right. Within the confines of constitutional law in Canada, do Aboriginal peoples have a right to design and implement their own citizenship codes, free from interference from Canadian governments? Alternatively, is there such a right, but subject to some measure of control by the Crown, and perhaps subject to other constitutional instruments, such as the Charter of Rights and Freedoms?
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Section 25 of the 'Canadian Charter of Rights and Freedoms' is an important, yet not fully understood, interpretive provision. This section plays an important role in Canada's constitutional framework by shielding the rights of aboriginal people from negative impacts that the 'Charter' may have on such rights. However, the exact scope and significance of the role that section 25 plays in 'Charter' interpretation is uncertain. Through a textual analysis of section 25, this paper attempts to provide guidance on the provision's possible interpretation and application. In particular, the implementation of section 25 and the maintenance of a balance between the individual and collective rights of aboriginal people will be explored Such commentary is required because the role of section 25 will inevitably become more relevant as more aboriginal self-government agreements and arrangements are concluded.
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The regulation of Native identity has been central to the colonization process in both Canada and the United States. Systems of classification and control enable settler governments to define who is “Indian,” and control access to Native land. These regulatory systems have forcibly supplanted traditional Indigenous ways of identifying the self in relation to land and community, functioning discursively to naturalize colonial worldviews. Decolonization, then, must involve deconstructing and reshaping how we understand Indigenous identity.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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