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Canadian Criminal Law and Canadian Family Law

Canadian Criminal Law and Canadian Family Law

Criminal Law

One of the key factors that keep agitating public debate and raising concerns in the Judicial System in Canada is the sentencing and punishment accorded to those found guilty of offenses by the courts. This has been in the form of the offenders who have been sent to custody or jail being released or pardoned as a result of different reasons as will be highlighted in this paper.

A comprehensive analysis of the sample cases provided on criminal law reveals that the judicial system in Canada is more specific in handling those offenders who are either committing a crime for a second time or have committed serious crimes even for the first time. This is portrayed in the verdicts passed that seemingly propose prolonged incarceration of those charged as guilty.

The cases of Ferguson and Readhead also give an insight into the main purposes of sentencing those convicted of criminal law offenses in Canada, and also globally. First, it is clearly pointed out that offenders are sentenced for reasons of denunciation. This is imposed to make sure that the type of punishment or verdict made by the judge is an actual reflection of a certain level of proportionality with the type of crime committed. The Canadian Criminal Code states that offenders should be sentenced in order to enhance deterrence. This is an implication that the judicial system, through the sentencing of individuals to serve terms in jail are aimed at reducing the levels of crimes that are being committed in society since the accused persons, their families and all other citizens are likely to learn lessons from those who have been in custody. They will strive to steer clear from repeating the same mistakes that could put them into trouble with the law. Judges can also sentence the accused persons like in the case of the Redhead in order to protect the public. This is often done through the incarceration of those found guilty or at times imposing some conditions to restrict their conduct within the community, especially in cases where the behavior of the offenders is considered as dangerous to the safety and well-being of the population.

Offenders are also sentenced for the purpose of rehabilitation, which is aimed at their own good, so that they may have the chance to change and become better people who are productive and contribute towards the economic development of the country. The Canadian Code also provides two additional reasons for the sentencing of offenders as reparation and demonstration of responsibility. Those who are found guilty are sentenced to reparation in order to give a platform where the community and the parties involved are compensated for the loss they have been through or harm suffered. With regards to responsibility, sentencing makes the offender to accept and feel more accountable for the wrong against the victims and families of those involved in the whole community. The section below provides an in-depth analysis on the cases and expands on the reasons for sentencing based on the actual cases and the judgments made by the courts.

The Redheads Case

The case between Regina and Ross Redhead was brought before the Court of Appeal in 2006 before a bench consisting of three judges. He was accused and convicted of not just being in possession of but also producing Marijuana with the main aim of drug trafficking. A verdict I first given that he should go to jail for two and a half years. The judge initially stated that the offender ought to have been sentenced for prolonged period in custody unlike the stipulated two years. The argument of the judge was that this would serve as an example in deterring such offenses from being experienced again. Besides, he also argued that the accused had a record of drug substance farming. However, I do not agree with the logic reasoning of the judge that the average sentence for Redhead should have been much longer than the two years outlined.

Foremost, the judge made a mistake by acknowledging that the different approaches of the sentences set for the same offenses, and the repeated reference in many court powers related to the sentences imposed by the court were inadequate in preventing those agitated by greed from taking part in crime in the community. This is an implication that even the sentences that the courts issued were not very effective in playing the role of sentencing offenders like Redhead; therefore there was no need to hand him a longer sentence. I also do not agree with the court’s decision of later cutting down his term from two and a half years to two years. This implies that the Redhead should have simply served the sentence in custody as required. Before making such a consideration, the court should have reviewed the offender’s past criminal records, which revealed that he had also been accused of growing marijuana, and evidence was found by the detectives from his home compound. The defense put forward by his counsel that he had taken part in that business many years ago as a result of his state of unemployment holds no water since a similar defense of joblessness would still not apply if he applied it 12 years after his last conviction of the same offense (Court of Appeal for British Columbia, 2008).

The Readhead Case
Denunciation This was not fulfilled because his sentence was reduced from the expected two and a half years to less than 2years thus his punishment was not proportionate to the crime committed
Deterrence Following his past criminal records, the deterrence goal was also not achieved by the sentence. He had been convicted of similar crimes 12 years before and chances are that he would repeat. Above all the deterrence goal was less effective judging from the past similar cases heard before the court.
Protection of the Community I think his crime was not harmful to the community as it did not involve the use of any armed weapons. So even this goal was not achieved with the sentence.

 

On the other hand, the Michael Esty Ferguson case involves the offender who was charged with manslaughter using a gun; a crime whose minimum penalty in a normal case is always incarceration for four years. However, he was granted an exception to that minimum to that minimum and given a condition sentence of two and a half years. The significance of this is that he did not just get less than a minimum but also a conditional sentence order which is not in the actual sense an incarceration. It is an alternative to jail, that he was to do community service, more similar to house arrest (Supreme Court of Canada, 2008). The Court of Appeal actually reviewed that sentence and restored the 4 years ruling since they argued that the two and a half years was not appropriate. In this case, I agree with the decision of the court to uphold the initial verdict of having the offender to serve four years behind bars. Compared to the case of Redhead that was non violent and had no involvement of arms, the accused in the case of Ferguson used an armed weapon to commit manslaughter against Mr. Varley. This is more dangerous and the offender should be put in seclusion from the community, not only to deter him but also for the safety of the people around. The need for protecting the community against a violent offender overrides the deterrence objective in this matter. Therefore, his sentence has served the role of denunciation.

These two sentences essentially portray that the guiding principles of the issuance of sentences by the courts are all informed by the over bearing objective that the offenders are supposed to serve that have direct proportionality to the nature or gravity of the committed crimes, based on the level of responsibility of the accused individual.

The Michael Esty Ferguson Case
Denunciation Ferguson’s sentence of four years was in line with the goal of denunciation for he had committed manslaughter.
Protection Having used his weapon, chances are that he is dangerous to the people thus having him behind bars for four years serves the purpose of protecting the community from his violent action.
Deterrence This sentence will serve as his personal deterrence but not for other criminals out in the society.

 

Gutoski vs Horon Case

The case of Gutoski vs Horon involved an impaired driver and the charge of impaired driving causing harm or death. The sentence was appealed because an argument was raised that a jail sentence was necessary although the offender was young and showed great potential for being rehabilitated. Drinking and driving is considered a very serious offense and protection of the public is critical such that the purposes of sentencing were overshadowed by the rehabilitative needs. The logical argument of the judges to arrive at the sentencing decision was based on the age of the accused and the probability of repeating the same offense at the expense of the safety of the public. The logical reasons of the judges were actually based on the nation’s tier system of punishing the young and novice drivers. Their decision makes sense in my view since it is important that all impaired drivers be brought to justice and locked up for the sake of the traffic safety of the public. In my opinion, this sentence served the three purposes of sentencing including, denunciation, and deterrence of the offender and similar criminals who may be out there and also for the protection of the public. Once in a state of drunkenness, the offender is likely to cause more accidents to members of the community, thereby jailing him was an appropriate sentence.

Family Law

In the case of Aspe v. Aspe (about spousal support), the matter was that of determining whether it was appropriate for his spousal support payments be increased so that he could pay retroactive payments. Eventually, he was able to stop the termination of his support; neither increased of pushed to pay something retroactive (Court of Appeal for British Columbia, 2010). In the last ten years, when the married couples broke up, the woman was constrained from obtaining support. From the presented cases, it is clear that the Supreme Court of Canada decided to have raised higher grants of spousal support for uncertain times. It is right that Aspe was required to raise the amount of support to his ex-wife. Based on the advancement in the social order plans about children, the enactment has also taken similar turn. There have been enactments of Child Support Guidelines, which have ensured more liberal children support for the young ones in a family. As the grants for spousal and children support have been rising, governments have been hampering social assistance, despite the fact that the two are not in a formal union as a matter of social strategy and, it is obvious that not all women on social help have employments or fathers to ask for support payment from.

In the case of Bain v. Bain (deals with child support)- The matter is specifically focused on joint custody, appropriate child support, and accessibility rights. There are various things that are considered in this case, especially on establishing whether the best interests of the children were taken into account and the way in which the judge made that consideration and managed all the different factors (Court of Appeal, 2008). Some of the factors that were considered in this matter include the character of the father and the existing relationship between him and the children. The mother confessed that the father had never showed any violent behavior and was unlikely to further support the court’s verdict. It was also considered that the laws regarding custody are bound to change as the children grew up and became able to make their own decisions.

Key factors arising from this case

  • It is clear that the issue of children’s custody after divorce has over the years transformed. The interest of Bain to have custody of his daughters is also considered, different from the case in the last years whereby only mothers were recognized by the law as the official custodians of law. The judge points out that as the children grow; they will be become independent to make their own choices on whom to be with, between the mother and the father. This is an indication of the way in which the modern family law in Canada provides the children with the rights to choose and determine the parent who should be granted custody.
  • Bain is allowed to see his girls since past records show that he has never been involved in violence. This indicates that the children also determine the parental access to them in the event of a divorce. ‘’Custody and access are not set in stone for all time. Children grow older and more independent’’ (Bain, line 20).

 

Moge v. Moge (involves divorce)- It was the case of a husband and wife seeking divorce and the issue and the issue of supporting the wife 16 years later after they separated. The court dismissed the appeal by Zofia Moge that she should continue obtaining support from her former husband, bringing into question the matter of self sufficiency among couples who are divorced in Canada (Supreme Court of Canada, 1992). It is argued that she has since been unable to financially support herself as a result of the impact of their separation. Another factor of consideration is her role of upbringing her child, which is viewed to have hampered her income generation efforts. The main issue arising in this matter is whether divorce causes economic downturn of couples after the termination of their marriage. Therefore, it is argued that such cases should involve thorough analysis of the financial status of the partners before, during and after the marriage to establish the impact of separation on families in Canada. The law states that;

While spouses would still be responsible after the separation to contribute to their own support in a manner that corresponds with the with their abilities, the ultimate goal is alleviation of the economic losses of the disadvantaged spouse, taking into consideration all the circumstances of the involved parties, including the advantages conferred on other spouse during the marriage (Supreme Court, 2008).

The Key Elements of Moge’s Case

  • Compared to the past years where divorce was recognized in the family law as only applicable in cases of adultery and misconduct related to matrimonial cruelty, the causes have changed today to include other factors.
  • Married couples can also be granted divorce simply after one year of having separated from one another, based on the strong evidence presented by affidavit demanding separation. This is not like in the previous years where separation had to be about three years to warrant divorce.

 

Barkley v. Barkely (involves same sex relationships)

This brings the issue that same sex marriages are a threat to children who are adopted by the couple since the environment they live in is considered as not safe. Another factor that is also strongly brought out in this case is that the family law in Canada highly favors the legal marriages between the members of the opposite sex unlike those of homosexuals. It is highly viewed that homosexual unions threaten the institution of marriage.

Aspe v. Moge Case Comparison

In both cases, the male partners are required to provide support to their former wives after divorce. For instance, Mr. Aspe’s claim to have the support he provides to his ex wife terminated is pushed aside; instead, the amount is increased to $2750 contrary to his expectation. On issuing the verdict, the judges based their decisions on elements like the current financial status of the partners, the duration that the couples have been married, the roles played by each of them with regards to the breakdowns of the marriages or unions, the expected care and support for the children who are recognized the couple’s marriage and the need for the other party to be self-supportive. I am convinced with the legal reasoning of the judges that impacted the ruling.

Bain v. Barkly Case Comparison         

These cases illustrate the evolution of the family law rights over time in Canada. Based on the analysis, it is clear that both same sex and heterosexual partners in marriage have the same rights when it comes to the adoption and support of children, provided that there is solid proof that they are in a marriage. For example, in the case involving Bain, the respondent had wanted the court to prevent the overnight visits of the former spouse to the children since it was since January 2005. However, the judges made a different verdict giving the father to have overnight visits that were highly specified and limited over weekends that alternated, over Christmas vacations and in July.

In Barkley’s case, the most ideal example is that of the mother having more access to the children and that she even came in to take care of them whenever their father was out on long duties in the army. In the event of a divorce, partners from these unions are granted equal rights to demand for the division of family property and support, including the custody of the children. This implies changes that have occurred over time, compared to the previous years when same sex marriages in Canada were not only considered illegal but prejudiced and undermined in the family laws.

 

References

Boyd, N. (2011). Canadian law: An introduction. Toronto: Nelson Education.

Court of Appeal for British Columbia. (2010). Aspe v. Aspe. 2010 BCCA 508

Court of Appeal for British Columbia. (2008). R. v. Readhead, 2008 BCCA 532.

Court of Appeal. (2008). Bain v. Bain, 2008 BCCA 49.

Supreme Court of Canada. (1992). Supreme Court of Canada – decisions: Morge vs. morge. Moge v. Moge, [1992] 3 S.C.R. 813,

Supreme Court of Canada. (2008). R. v. Ferguson 2008 SCC 6.

 

 

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