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Wednesday, July 26, 2017

Brown, "Firearm 'Rights' in Canada: Law and History in the Debates over Gun Control"


R. Blake Brown has published "Firearm 'Rights' in Canada: Law and History in the Debates over Gun Control" in the Canadian Journal of Law and Society/Revue Canadienne Droit et Société.
Here's the abstract:
This article explains why and how some Canadians have asserted a right to possess firearms from the late nineteenth century to the early twenty-first century. It demonstrates that several late-nineteenth-century politicians asserted a right to arms for self-defence purposes based on the English Bill of Rights. This “right” was forgotten until opponents of gun control dusted it off in the late twentieth century. Firearm owners began to assert such a right based upon the English Bill of Rights, William Blackstone, and the English common law. Their claims remained judicially untested until recent cases finally undermined such arguments.
Cet article explique pourquoi et comment certains Canadiens ont revendiqué le droit de posséder des armes depuis la fin du XIXe siècle jusqu’au début du XXIe siècle. Il explique comment divers politiciens de la fin du XIXe siècle ont revendiqué le droit du port d’armes à des fins d’auto-défense en vertu du Bill of Rights anglais. Ce « droit » fut oublié jusqu’à ce que des opposants du contrôle des armes le ressuscitent à la fin du XXe siècle. Les propriétaires d’armes à feu commencèrent à s’approprier ce droit en invoquant le Bill of Rights anglais, William Blackstone, et la Common Law. Leurs revendications demeurèrent non vérifiées en droit jusqu’à ce que de récentes affaires ne viennent saper leurs arguments..

Tuesday, July 25, 2017

Pearlston, "Avoiding the Vulva: Judicial Interpretations of Lesbian Sex Under the Divorce Act, 1968"

Karen Pearlston, of UNB Faculty of Law, has published "Avoiding the Vulva, Judicial Interpretations of Lesbian Sex under the Divorce Act, 1968" in the Canadian Journal of Law and Society/La Revue Canadienne Droit et Société.

Abstract:

The Divorce Act, 1968, provided no-fault divorce for the first time. It also included a list of fault-based grounds for divorce. In addition to the traditional grounds, a spouse whose wife or husband had “engaged in a homosexual act” during the marriage could petition for divorce. This novel provision was aimed at giving husbands a way to divorce their lesbian wives. A close reading of the resulting jurisprudence and surrounding context shows not only that courts struggled to define the homosexual act between women, but also that the legal history of lesbian women differs from that of gay men in a number of respects. Notably, male homosexuality was regulated primarily through criminal law. In contrast, when parliamentarians specifically addressed lesbians, they turned their minds to the family and family law.
La Loi sur le divorce de 1968 offrait, pour la première fois, le divorce sans égard à la faute, mais aussi la liste de motifs de divorce reconnus par la loi. En plus des motifs habituels, la Loi prévoyait qu’une personne dont l’épouse ou l’époux avait eu des relations homosexuelles durant le mariage avait un motif de divorce valable. Cette nouvelle disposition visait à donner aux maris la possibilité de divorcer de leur femme lesbienne. L’étude approfondie de la jurisprudence et du contexte qui en a découlé indique que non seulement les tribunaux ont eu beaucoup de mal à définir ce qu’est un acte homosexuel entre femmes, mais aussi que l’histoire juridique de l’homosexualité féminine est très différente de celle de l’homosexualité masculine. Par exemple, l’homosexualité masculine était abordée par le biais du droit criminel, mais lorsque les parlementaires traitaient d’affaires lesbiennes, ils pensaient surtout en fonction de la famille et du droit familial.

    Thursday, July 13, 2017

    RIP John Beattie

    John Beattie was loved by everyone who knew him, and admired and respected by everyone who read his work or heard him speak. His brilliance as a scholar was matched by his kindness as a person. An unusual combination. I could say more, but this is a lovely obituary in the Globe and Mail. I will post the details of his memorial when they are available. Goodbye John, and thank you for everything.

    John Maurice (J.M.) Beattie 
    Passed away from cancer on
    July 12, aged 85, in the comfort
    of his family.John leaves Susan,
    his loving wife of almost 59
    years; three children:Katherine
    (Ed Holmes), Allison (Mark
    Simpson) and Roger
    (JoanneHoribe); and five
    grandchildren: Natalie, Nicholas,
    Sarah, Chloe andKaz - all of
    whose lives he touched so
    deeply.He was predeceased by
    his parents, Frank and Mary
    Beattie and by his beloved older
    sister, Joyce.John Beattie was
    born and raised in Dunstan,
    England, near Newcastle upon
    Tyne. During the war he and his
    sister were temporarily relocated
    to the countryside.After the war
    Joyce married an American
    serviceman and the entirefamily
    moved to Napa, California.John
    attended the University of San
    Francisco where he studied
    historyand captained the soccer
    team. In 1988 he was inducted
    into the USFsports hall of
    fame.John earned a master's
    degree from the University of
    California atBerkeley. It was
    there that he met Susan, the
    love of his life.In 1957 they
    moved to the UK where Susan
    taught school while John earned
    his Phd. from King's College
    Cambridge, under the
    supervision of J.H. Plumb.In
    1961 he accepted a teaching
    position in the History
    department at the University of
    Toronto, the start of a thirty-five
    year career.In the late 1960s
    John turned his academic
    attention to the subjectthat was
    to define his ground-breaking
    research, publishing career and
    reputation: crime and the
    administration of justicein 18th
    century England. He published
    many articles along with five
    books including his seminal
    work, 'Crime and the Courts in
    England, 1660-1800.'In the
    1970s, John's burgeoning
    academic pursuits happily
    coincided with the creation of
    the U of T's Centre of
    Criminology, the beginning of
    what was for John a significant,
    decades-long association; one
    that included two stints as the
    Centre's Director.Yet as
    important as research and
    writing were for him, John's
    great love was teaching. He
    believed this was a university's
    most essential mission and the
    truest test of what its core values
    should be: openness, curiosity
    and rigour.John always took
    immense pleasure in the work of
    his graduate students and joy in
    all their successes, academic and
    otherwise. His spirit of
    generosity towards them
    extended to colleagues in the
    field, to his and Susan's
    neighbours and to their many
    friends, and their families. Above
    all else John's credo was
    fairness. He insisted on it in his
    own assessment of the past and
    lived it in his dealings with the
    people in his life, no matter how
    long or short his association with
    them.Upon his retirement in
    1996 John was a U of T
    University Professoremeritus. He
    and Susan spent many
    wonderful summers at their
    cottageon Pencil Lake where
    John played business manager,
    transportationdirector and chief
    glaze-consultant for Susan
    Beattie Pottery, happilyassuming
    the supporting role for Susan's
    pottery-making that she had
    devoted to his academic work.It
    was a lifelong partnership in all
    the best ways.It was at Pencil
    Lake, too, that he fell in with a
    group of golfbuddies, found later
    in life, whose Tuesday rounds on
    courses acrossthe Kawarthas
    gave him so much
    pleasure.John's work drew
    praise and many awards but his
    most truly importantsuccesses
    came elsewhere: devoted
    husband, loving father, nurturing
    grandfather and loyal
    friend. Cremation has taken
    place.There will be a celebration
    of his life in the fall academic
    term, details to be
    announced.The family would
    like to thank Dr. Russell Goldman
    and his wonderful team at the
    Temmy Latner Centre for
    Palliative Care and Nina and
    Emily from Saint Elizabeth, all of
    whom provided such loving care
    to John these past months.The
    family is also so grateful to the
    staff at Kensington Hospice for
    making his final hours so
    peaceful.In lieu of flowers, a
    donation to Interval House, an
    organizationdevoted to restoring
    respect and independence to
    abused women and children,
    which John has supported for
    many years, would be greatly
    appreciated. 

    http://v1.theglobeandmail.com/servlet/story/Deaths.20170713.93390785/BDAStory/BDA/deaths

    Monday, July 10, 2017

    Tucker, "When Wage Theft was a Crime in Canada, 1935-55" on SSRN

    Eric Tucker has posted "When Wage Theft was a Crime in Canada, 1933-1955" on SSRN. The article will appear in the Osgoode Hall Law Journal, vol. 54, issue 3.

    In recent years the term “wage theft” has been widely used to describe the phenomenon of employers not paying their workers the wages they are owed. While the term has great normative weight, it is rarely accompanied by calls for employers literally to be prosecuted under the criminal law. However, it is a little known fact that in 1935 Canada enacted a criminal wage theft law, which remained on the books until 1955. This article provides an historical account of history of the wage theft law, including the role of the Royal Commission on Price Spreads, the legislative debates and amendments that narrowed its scope and the one unsuccessful effort to prosecute an employer for intentionally paying less than the provincial minimum wage. It concludes that the law was a symbolic gesture and another example of the difficulty of using the criminal law to punish employers for their wrongdoing.