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Canadian law: An introduction Essay

         A person that has been convicted of crime is sentenced for three main purposes; deterrence, retribution, and protection of the public. The degree to which these three objectives are achieved is subjective since incidents that make up a case are isolated and differ. In the case of Ferguson, the accused was charged with manslaughter with a firearm. According to Canadian criminal law, the minimum penalty for this offense is 4 years’ incarceration. However, the defendant in this case got 2 and a half years conditional sentence which meant that he could enjoy his freedom to a certain extent. However, the court of appeal stepped in and restored the four year incarceration sentence that is prescribed by law (R. v. Ferguson, 2008). However, this sentence only met two the sentencing goals; deterrence and protection of the public.

           With the sentence, the accused was deterred from engaging in a vice similar to the one that he had been convicted of again. Consequently, this meant that the public was protected from the perpetrator of the crime. Viewing this goal from a logical point of view, it was achieved partly. This is because the public was only protected from the perpetrator the crime and not the crime itself hence the goal achieved was a significant reduction of the threat posed to the general public. The third goal being retribution was hardly achieved. This is because the criminal was given the minimum sentence and this was after the initial ruling was overturned by the court of appeal. This creates a mindset that there is a possibility for one to be punished rather leniently for a man-slaughter.

           Another case that can be used to examine the purposes of sentencing is the case of R. v. Readhead (R. v. Readhead, 2008). In this case, the accused was sentenced to 2 and a-half years imprisonment. Again, this case makes the matter of sentencing convicted persons, with regards to the cultivation of marijuana for trafficking purposes, subjective. This is because the scale of production may vary. In this case, the sentence that the accused was given was appropriate since it served all the three sentencing purposes. It deterred further production and circulation of the drug from this specific source, consequently protecting the public, and it also aided in the retribution of the convicted individual because the sentence served was very heavy if compared to the quantity of the drug that he was found with.

         In the case of R. v. Horon, The accused was a young man that was convicted for driving under the influence. Being young, the accused showed a great potential of retribution but due to the reverence of public protection with regards to drinking and driving, a sentence was deemed necessary therefore creating a state of imbalance as to the degree to which the sentencing goals were achieved (Boyd, 319-21). In the arguments presented for this case, the judges referred to the case of R, v. Gutoski January 4, 1990 where the charge was for driving while impaired and for such a case, a sentence was necessary notwithstanding the reasons for driving while impaired due to the risk posed to the general public (Boyd, 320). In this case, the case of R. v. Horon, all the three sentencing goals were achieved only that they were a little stringent on the convict as the possibility of retribution without a sentence was overlooked.

Canadian Family Law

          Since the 1960’s, the Canadian family law has experienced major changes that have been depicted in the cases involving family over the years. The case of Aspe v. Aspe (Aspe v. Aspe, 2010) is one that shows how some of the changes have been effected in the family laws of Canada. The main issue in this case was spousal support. Before the 1985 divorce act was passed, spousal support as well as children support was mandatory for the man. However, the spousal support was subject to change after the 1985 act. This is because the ruling on this issue was subject to consideration as section 15.2(6) states the need for economic advantages and disadvantages to be recognized, the consequences apportioned, all for the purpose of promoting self-sufficiency (Douglas, 2001). In this case, the ruling made did not alter the spousal contribution that the court had earlier prescribed. This is because it took into consideration Mr. Aspe’s financial position and at the same time examined Ms. Aspes’s financial liabilities and determined that Mr. Aspe was in no position to increase his contribution with regards to his annual income, expenses and debts as well.

         In the case of Bain v. Bain (Bain v. Bain 2008), the dominant issue was the custody of the children. The appellant wanted the terms of the custody arrangement to be revised so that they could favor both parties. According to the arrangement, the appellant had been granted access, information and visiting rights while the respondent was to house the children and care for them as prescribed in the divorce act (Douglas, 2001). However, the appellant was applying for joint custody, which was not granted by the court. In this particular case, the judge took the children’s best interests into account because the children were relatively young. This meant that the best arrangement would be for the respondent, to retain most of the custody rights but at the same time grant access to the appellant as the father of the children. On the other hand, the ruling with regards to child support was necessary since the court examined the appellant’s financial capabilities and prescribed a contribution that would not strain him.

           The Moge v. Moge (Moge v. Moge, 1992) can be compared with that of Bain v. Bain to showcase the changes made in the Canadian family law. The parties in this case were married in the mid 1950’s and separated in 1980. The court ruled that the man was to give the ex-wife a monthly contribution of $150 as spousal and child support. At some point, the woman was laid off from her place of employment and the man had to increase his support to $400 a month. However, this ruling was overturned and the man was required to pay the initial $150. This shows that prior to the 1985 act, the criterion for determining support was the means and needs, which overlooked the other criteria stated above.

           In the case of Barkley v. Barkley (Boyd, 253), the issue raised is of same sex and heterosexual marriages and how it is treated by Canadian courts. When divorce arises in a same sex marriage, the court treats the parties similar to how they treat straight couples. However, the issue is in heterosexual marriages as is seen in this case. Mr. B argued that it was not in the best interest of Lynn’s custody to be given to her mother in full due to her sexual orientation. Mr. B argued that this would influence her negatively.

            In conclusion, the family laws in Canada have experienced changes that have impacted the rulings of cases in a major way. These changes act as a guideline to be implemented in various cases depending on the facts as presented.

References

Aspe v. Aspe, 2010 BCCA 508.

Bain v. Bain, 2008 BCCA 49.

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

Douglas, K. (27 March, 2001). Divorce Law in Canada.

Moge v. Moge, [1992] 3 S.C.R. 813.R. v. Ferguson, [2008] 1 S.C.R. 96, 2008 SCC 6.R. v. Readhead, 2008 BCCA 532.

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