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Nicole Myers

Lecture 6: Abortion Pro-life Pro-choice Right to life of unborn take legal & moral precedence Women’s right to reproductive freedom over women’s right to choice (life over choice) – not Central to realization of gender equality compelling enough to overwrite life, despite Need complete access: there should not be unwanted pregnancies differences across provinces or urban & rural areas 1960s: feminism resurges, civil rights movement, Criminal Code Section 251 forbade abortion Contraception, condoms = illegal discussion around making birth control available Indictable offence: max=life sentence Trudeau: active in civil rights movement – Assisting or performing an abortion = criminal Charter; state has no right to impose on privacy offences and constrain personal choices – state cannot dictate abortion when it is a morality choice for Carrying out own miscarriage: max=2y in prison individuals to make on their own; changes around Equivalent to murder, manslaughter, neglect of family laws (divorce), birth control, and abortion child Foetus’ right to life precede over women’s right to choice Women with financial means went to USA for abortions, but unsanitary & unqualified personnel = deaths (1926-47: 4-6000 in Canada from illegal 1969 amendments: Health & safety of mother abortions) gave exception for abortion – accredited hospital with committee of minimum 3 doctors who give written consent  shifting out of legal & moral realm; now a medical issue Problems with the medical model of abortion Panel of doctors on committee can only give permission for abortions to occur; men deciding women’s health, so typically panel comprised of women Abortions not allowed in clinics; exaggerated disparity: liberal hospitals more likely to give permission (city) vs. rural areas, which may only have a single hospital Common for hospitals to hold Catholic views – do not allow abortions Access to abortion not equally available for all women – rural: had to travel Acceptable to abort in first trimester, but most women don’t know pregnant until after 3 months; farther along pregnancy = more dangers/risks & people have difficulty with the idea 8 weeks delay for approval & another 8 before actually performing abortion Women still went to USA for faster & easier abortion Montreal, 1969: Morgentaler opens up a clinic for abortion, contraception, and family planning: women should have choice to protect own life & health, and have abortion in a medical, clean, and sanitary environment, instead of resorting to unsafe procedures. 1970: clinic raided & charged with conspiracy to perform abortion & 10 other abortion-related offences. 1973: jury (11 men, 1 woman): not guilty; 1974: acquittal is overturned & he is convicted; appeals to Supreme Court of Canada: in 1975, 6-3 guilty & 18months sentence; other offences are acquitted by jury & the Court upholds the acquittal decision. USA – Roe v. Wade: US Supreme Court 14 amendment right to privacy is extended to women’s right/ability to choose abortion, which will be balanced with state’s legitimate interest in protecting prenatal life & women’s health  interest grows stronger as further along pregnancy: first went by trimester, rejected that, and went by viability (ability of unborn child to survive/live outside the womb) Released in 1977; 1977-1983: Winnipeg, Toronto, etc.: Morgentaler opens up a new clinic despite Criminal Code restrictions; 1983: raided & charged with conspiracy & 1984: jury acquittal again; 1985: Attorney General appeals  appeal court  Morgentaler appeals  1988: Supreme Court *Times are changing: juries continue to acquit despite opening clinics = offence* Morgentaler: Women have right to choose: power should be in their own hands than a committee who decides for them Clinics promoted women’s right: should be allowed to make choice for own body It’s a civil right (no longer medical issue); Charter is in place: women’s constitutional right Criminal Code should be in accordance with the Charter which supersedes laws Bill of Rights prior to Charter=Criminal Code S.7: right to life, liberty, & security of person Abortion laws violated women’s equality rights (s.15) and s.7 rights Supreme Court: Ruled 5-2 Abortion laws violated s.7; cannot be saved under s.1 3 different POVs & interpretations of s.7 All were consistent to strike down laws; struck; abortion not illegal or legal Dickson & Beetz: medical problem; rights of security violated; laws protected fetus & Gov. has interest BUT laws precluded person from obtaining appropriate medical treatment so no reasonable limit; can restrict right but current laws were not tailored enough Bertha Wilson: violated s.7, but even do come up with new laws, would it avoid violating s.7? Can people be forced by law to carry child to term? State should respect people’s personal decisions; choice is social & ethical due to economic, social & psychological consequences; reproduction rights are rights to conscience and religion; men do not have to go before a committee & ask for rights of their own body 1989: Trembly v. Diagle – boyfriend Trembly wanted to veto girlfriend Diagle’s decision of abortion; court gave legal paperwork – injunction; appealed & Supreme Court rules father of unborn child has no right to veto abortion decision (Diagle had secretly gotten an abortion in USA but Court decided to still give a ruling) Bill C-43: part of Gov.’s attempts to recriminalize abortion – Mulroney’s Conservative Gov.; passed in House (elected) but struck down by Senate (appointed); last formal attempt *Abortion is treated like any other medical procedure: covered by OHIP in Ontario* USA: abortion debate is more common; Dr. Wilke: heartbeat within first 8 weeks of pregnancy – Heartbeat Bill: rights of life extended to fetus at detection of heartbeat; Todd Akin: idea of legitimate rape (pulled on Wilke’s ideas) – women often falsely report rape; Republic platform: no abortions, no exceptions & fetus is to be regarded as person with right to life from moment of conception; Mississippi Supreme Court: intentional miscarriage & criminality – overdosed on methamphetamine while pregnant & gave birth to stillborn  manslaughter for culpable negligence Law in Canada has changed due to the courts, which have narrow interpretations Clinics & Regulations Depending on where you live, greater access to choice Newfoundland, BC, ON & Alberta cover abortions in clinics; hospitals covered 1994: New Brunswick banned clinics, but had to open later on – performed only if medically necessary and approved by two doctors PEI: has on abortion services; must go out of province for abortion Need to look at bigger issues: education, services, & parental support CARAL: Canadian Abortion Rights Action League PCAN: Pro-Choice Action Network True freedom and reproductive rights, abortion should be in family planning model with services offered as equal access nationwide; more services for women, especially those who chose to have children: healthy pregnancy information, universal daycare (don’t pay), childhood education, maternity leaves, care and support for child within workplaces, midwifery, access to affordable housing & other economic equality issues, contraceptive information, Abortion rates are lower; 95000-100000 across Canada per year The Supreme Court’s power has been reinforced Legal decisions are law dependent, not morality-based; insulated from politics The Charter tells Gov. how to breach rights; doesn’t grant citizens’ rights Lecture 6 - Lesbian and Gay Rights Foucault: there is a distinction between governing sexuality  acts vs. homosexual identity 1900s: shifted to identity of delinquency  decline due to expert knowledge: criminal actions to medical/psychological models – diagnose as suffering from homosexuality Homosexuality is talked about in a discriminatory way even though it is not explicitly stated in the Charter Act-based governance Identity-based governance Actual sexual action (not person) = target of laws or Embodiment of identity (how you look at self) religious injunctions Underlies actions, but doesn’t rely on them Catholicism: sin; action is wrong Developed by experts – psychiatry disorders  Any person could commit act originated in psychological field but medical problem; Not regulating character, lifestyle, or identity; but therapy & med discreet action associated with character or identity - Get the gay out of you Historically concerned with crime Embraced by movement & elevated Old Criminal Code s.147 (buggery & bestiality – 14y) & s.149 (gross indecency – 5y): homosexuality was criminal prior to 1969; gay sex was criminal regardless of in private or public; any form of unnatural sex, oral sex, or anal sex were illegal, but homosexual men predominantly targeted by laws & police; derived from religious laws: anything that didn’t lead to procreation was unnatural – anal sex, masturbation, & sex with animals; penetration wasn’t required – kissing or holding hands was enough for s.149; laws derived from Britain; stigmatizes “unnatural” actions, including those in private; Church: okay to be homosexual as long as don’t act on & remain celibate 1940s-Homosexual Identity: advanced by medical profession – part of medical model  mental health problem (DSM): psychiatry profession turn to research on homosexuality & responsible for putting idea of homosexuality forward & moving away from church to mental disorder – equated with pathology; treated with shocks, extreme medications & therapy History of Legal Regulation: 1948: CC amendment – indefinite preventative detention for sexual psychopaths (can’t control sexual impulses; reflect loss, pain, injury, or other evil onto others due to impulses) – gays cannot control impulses so put in jail 1950 Immigration Act amendment – prohibited immigration of homosexuals 1954 Dangerous Sexual Offenders – royal commission drew distinction between common & dangerous; homosexuals were dangerous 1957 Wolfenden Report (Britain) – homosexuality is a psychiatry issue, not criminal; criminal law concerns social harms only; decriminalization of acts between adults – identity developing; progressive + lightened approach with modern rationale; distinction between private and public 1960s Klippert case – NW territories: s.149 18counts & 4 more after 5y despite consent; sentenced to 3y in Aug. 1965 – 6months in, court declares dangerous & indefinite detention – Supreme Court refused appeal: lacked to control impulses despite no evil on anyone (Batoe, majority) & 2 judges dissented; media supported minority (debate) Trudeau: state cannot criminalize what happens in private; homosexuality put in private sphere and medicalized Charter Bill put forward by Trudeau (liberals); decriminalized acts in private; influenced by sexual revolution & rights movement for end to discrimination; homosexual activity allowed in private Trudeau: difficult legislation & campaign prepared public opinion – drawing distinction between sin and law – religious beliefs don’t mean criminal offence 1973: psychiatric association in DSM struck down 1980s: gay movement; no offence but still unaccepted – pressure to remain in closet & stigma attached – if public can see, still an offence Charter invoked rights and equality & change; gay movement relied on feminist movement’s arguments (who also supported) – moved from jeans/casual to well-dressed, arguing for inclusion, well educated; variety of minority groups arguing for rights, not just in private but in public as well s.15 (1) – sexual orientation doesn’t justify differential treatment No longer availability of indefinite sentence & call for recognizing homosexuality Post-Charter Legal Cases 1995 Egan v. Canada Equality for sexual orientation & right to obtain spousal pension under Old Age Security Act which included spousal benefits Two gay men were spouses, so Egan’s partner should receive benefits which were available to married heterosexual couples Case had nothing to do with money; did court recognize homosexual and heterosexual couples as equal in terms of social, economic, etc.? Is sex orient analogous ground? Can 2 men be legal spouses & entitled to equal pension benefits? Court unanimous for sexual orientation as analogous ground & homosexuals have right to equality; homosexuality = personal unchangeable characteristic& if changeable, would come at unacceptable personal costs  read into Charter Court divided: marriage firmly anchored in biology & by nature is heterosexual; 4/9 judges: should be spouses & homosexuality didn’t change that & depriving choice denies equal benefits; 4/9 disagreed; 1/9 didn’t answer; appeal dismissed 1999: M v. H; Ontario amendments 2 Toronto women lived together for 2 decades; relationship dissolved H=breadwinner; M=stayed home M sued for spousal support/benefits under family laws Law defined spouse as married couple OR man and women (unmarried) lived together for 3y or more Supreme Court: opposite sex definition = unconstitutional; order law be changed to extend benefits to same- sex couples Justice Cory, majority: exclusion promotes that homosexual relationships’ individuals are less worthy of benefits so Ontario must extend benefits Discrimination – homosexual couples recognized as common law partners 2002 Halpern et. al v. Canada & 2003 Halpern et. al v. Attorney General of Canada December 2000 – Reverend Hakes uses reading of bonds tradition to give public notion of couple’s intention to marry; if read 3 Sundays before marriage, allows him to legally marry them; allows people who object to come forward; indicated 2 gay couples wanted to be married; week later, 2 people objected: another Reverend who called procedure lawless and godless, but dismissed objections & read bonds again for third time; media catches so government begins to respond; government won’t recognize, license won’t be given 2001 Jan: 2 same sex couples married & lead to 2002 case Ontario Superior Court of Justice: ruled in favor of same sex marriage, indicating any laws/rules prohibiting are unconstitutional as violate Charter; gave government 2 years to amend laws; case appealed to higher superior court; in time of coming to appeal, Alberta court banned marriage b/w same sex using s.33 of Charter Common law definition does violate: Oakes Test – not a reasonable limit: existing definition declared invalid & required government to reformulate definition to 2 persons but not given 2 years, immediate effect, license given to same sex married couples Appealed to Supreme Court - Oct 2003: felt no need to review court’s decision, agreed with so now applied Canada wide & legislation draft bill sent to court for proofreading: does parliament have exclusive authority to change definition, did constitution protect religious leaders who refuse to sanctify same sex couples? Supreme Court: new legislation constitutional, but left in free vote for parliament; federal government has exclusive power to change definition of marriage otherwise different provinces would do different things; affirmed religious leaders could not be compelled to perform the marriage (can’t be obliged to perform ceremony contrary to religious beliefs) NW, Nunavut, Alberta, PEI, & NB did not recognize/perform same sex marriage 2005: bill in house, free to vote, vote went 175 in favor with 123 opposed – Conservatives in opposite asked to reopen but this was third vote & had passed under 3 different Prime Ministers across 3 different years USA: Obama in support of same sex marriage despite controversy due to strong religious movement Although legal ban lifted, homosexual couples still struggle to be accepted; 20 000 married couples OCT 2012: struck down prohibition on gay marriage, divided in decision but majority struck it down as unconstitutional & rejected definition of marriage b/w man and woman; appealed to US Supreme Court; decision expected in June; examination of proposition 8 of California poll of marriage defined as union b/w man and woman Current Situation 2004 Supreme Court of Canada decision on same-sex marriage & 7 provinces legalized same-sex marriage 2005 Federal Government introduced its same-sex marriage bill in the House of Commons Peculiar that courts make decisions & parliament left to catch up (parallel w/ abortion) LECTURE 7 Squeegee kids: punk style clothing, homeless, have not decreased in # but less visible, skate shoes, big baggy shorts, intense Mohawks, long hair or dreadlocks; physically intimidating, regarded as threatening Characteristics - Majority in Toronto age 16-25 - Information from 2 different studies prior to Act - Fairly young people population, most are male but females are not behind in terms of proportion: 60% male, 40% female - Fairly some are not from Toronto  more likely to find people of your own group who identify with you in a city than rural areas: 40% from outside Toronto area - Most are homeless o 34% no shelter o 24% squats  Squats: staying in abandoned building, tent community (living under highway pass) o 15% with friends/relatives  Friends/family  couch surfing o 24% rent  in a small room & share facilities (bathroom, kitchen) with others o 3% shelter  Small proportion in shelters  why?  Overcrowded  Fears of victimization (rob/stab while asleep, sexual abuse for females)  Rebellious/anarchy stereotype (government state run institutions)  Non-government ones: don’t need charity  Limited # of beds for access/use  Stigmas around being in a shelter;  Most require you to vacate during the day (only can stay at night & first come, first serve)  Often have a lot of rules (may only serve males, adults; against swearing; curfew; cannot come in intoxicated so cannot drink or do drugs)  find it restrictive - Summer of 1998, just prior to Act: 220 squeegee kids - 70% are heterosexual, 14.1% define themselves as bisexual, 4.6% as gay and 2.3% as lesbian and less than 1% as transgendered - Men - 56% -have grade 11 or less, 31% have grade 12 and 12% have university or college or technical school - Women, 60% have grade 11 or less, 33% have grade 12 and 6% have university, college or technical school - Population: not really educated; slight difference b/w male and females; close to half don’t have high school graduation & of those who went, dropped out; many with problems: dyslexia, ADHD, other learning disabilities How do they make money? - 36% of youth earn money by panhandling or squeegeeing o Wash your windshield for you and you would give them any of your loose change o At intersections, became familiar o Panhandling: sitting and asking for money - 19% do break and enters or sell drugs: criminal activity to support drug habit - 18% some sort of welfare  receive social assistance - 17% by have paid employment: working at a fast food restaurant, handing out newspapers, etc. - 10% do sex trade work Would they like to work? - Would they take on paid employment? Yes - 83.4% of males and 87.8% of females said yes - 53.7% would take any job if paid $20 an hour - 35.5% would do just about any job - 51.8% felt that any job was better than welfare - 18.7% would rather take welfare rather than a job they didn’t like - Half said having a job would be better than welfare BUT some said would rather have welfare than do a job they do not like - 18.% said they would not mind being unemployed for awhile o Some would only like to do a job time to time - Lack of unity in approach, but there is a desire of work – want to be compensated at a fairly high rate, not work somewhere/thing they hate, unemployment doesn’t mean end of the world What was preventing them from getting jobs? - No fixed address (45.2%) - Lack of work experience (43.3%) - No phone (44.5%) - There is something important about having a home – no address, shelters don’t allow you to use theirs; inability to contact; cannot have a SIN card w/o fixed address - Been on streets since of age 15; history physical/sexual abuse in families; removed from home and bouncing from foster homes; addiction issues; mental health; little experience - No money for transportation for job search (40.2%) - Don’t have the right clothes or appearance (34.7%) - Need somewhere to write your resume up; wear something else; money to take transit b/c further than you can walk - Legal problems, (21.3%) - A number have a criminal record - Lack of motivation (21.3%) - Issues around motivation to work – desire to go out and get a job - Their problems which included waking up and keeping a schedule, health, and literacy problems - Challenges around keeping a schedule; getting up in morning; basic literacy skills Victimization - 45.7% of street youth reported being attacked in the past year, as compared to 6.3% for their non- homeless peers - 52.8% reported being threatened with an attack - 42% had been sexually assaulted or threatened with sexual assault. - Almost half have been attacked where as general youth pop only 6% - Considerable amount of victimization - Not in lifetime, but last year - Worst victimization came at the hands of the police Oh Great - Squeegee Kids by Ritchie Annand - Stereotypes of squeegee kids; encounter with them; aggression Ontario’s Safe Streets Act An act to promote safety in Ontario by prohibiting aggressive solicitation of persons in certain places and disposal of dangerous things in certain places, and to amend the Highway Traffic Act to regulate certain activities on the roadways. - Public fear and hate of squeegee kids; response to this - Not a federal law - Came into force in 2001 - Conservative government under Mike Harris - Amendment to Highway Traffic Act: Criminal law is federal jurisdiction but province administers roadways, so can set up laws around it - Those in support of act  doesn’t target individuals but about public safety and safety of roadways in province Definition of ‘soliciting’ To request, in person, the immediate provision of money or another thing of value, regardless of whether consideration is offered or provided in return, using the spoke, written or printed word, a gesture or other means. - Encompasses variety of behaviours, direct contact, asking for money or anything of value (subway token, gift certificate) - Does not have to be implied or request but the act of asking; can be more than verbal  signs (written), cannot gesture with hand out Prohibitions – ‘aggressive manner’ “A manner that is likely to cause a reasonable person to be concern for his or her safety or security” 1. Threatening the person solicited with physical harm, by word, gesture or other means, during the solicitation or after the person solicited responds or fails to respond to the solicitation. 2. Obstructing the path of the person solicited during the solicitation or after the person solicited responds or fails to respond to the solicitation. 3. Using abusive language during the solicitation or after the person solicited responds or fails to respond to the solicitation. 4. Proceeding behind, alongside or ahead of the person solicited during the solicitation or after the person solicited responds or fails to respond to the solicitation. 5. Soliciting while intoxicated by alcohol or drugs. 6. Continuing to solicit a person in a persistent manner after the person has responded negatively to the solicitation. - 6 different ways of aggressive solicitation; solicitation is not prohibited but aggressive is - Prohibitions: physical harm, threatening gestures, yelling out threats or insults, abusive language, blocking someone’s path (sitting on sidewalk) or following them, influence of drug or alcohol, asking more than once Prohibitions – ‘captive audience’ No person shall (a) Solicit a person who is using, waiting to use, or departing from an automated teller machine; (b) Solicit a person who is using or waiting to use a pay telephone or a public toilet facility; (c) Solicit a person who is waiting at a taxi stand or a public transit stop; (d) Solicit a person who is in or on a public transit vehicle; (e) solicit a person who is in the process of getting in, out of, on or off a vehicle or who is in a
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