Article Origin
Volume
Issue
Year
Page 14
Pro Bono
Dear Tuma:
When is it illegal for an abortion? Why?
Curious
Dear Curious:
It is not illegal to have an abortion. In 1969, abortion was made legal through amendments to the Criminal Code. The Criminal Code used to have a lengthy procedure and restrictions on how, where and who could perform an abortion. The case of R v. Morgentaler in 1988 struck down section 287 of the Criminal Code, because it was in violation of section 7 of the Charter of Rights and Freedoms. It interfered with the liberty of women in trying to obtain a legal medical procedure.
Most abortions are done in hospitals and clinics and are primarily regulated by the Canadian Medical Association. The law does not recognize any right in the fetus until born alive. A father cannot veto a woman's right to choose whether or not she will have an abortion.
Dear Tuma:
What is Aboriginal customary law?
Traditionalist
Dear Traditionalist:
Aboriginal customary law is how Indigenous peoples exercised their powers of governance since the beginning of time. These powers were exercised by various clan chiefs/mothers, hereditary chiefs, Elders and/or other leaders. Governance was usually connected to family and to land. These traditional principles governed the spiritual, family and political relationships in all areas of Indigenous people's lives.
Aboriginal customary law has been recognized by the Canadian legal system in certain situations such as marriage, adoption and, in some cases, murder defences.
The colonizers have sought to replace Indigenous customary laws with the laws of Canada, and to a very large extent have succeeded in doing so. Yet, despite this, there are Indigenous people who continue to abide by ancient practices and traditions in how they set up their relationships in politics, family, economic development and resource management.
The danger lies when individuals do not know the traditional customary laws and make up new ones on the spot to cover a particular situation or try to import other customary laws from other nations.
Dear Tuma:
I have been cut off my welfare because they say that I'm living common law. What can I do to show them that I'm not living common law?
Not Living In Sin
Dear Not:
The natural processes of justice would have you not having to prove anything. The social assistance office is who made the allegations against you and they have to prove it. You should appeal the decision to the supervisor or to the chief and council.
The Indian Act now has a definition of common law and it states that you have to be in a conjugal relationship for at least one year.
The definition does not distinguish between opposite or same-sex couples.
Ask the social assistance officer what proof they have in saying that you are living common law. This does not mean they have to see you in bed together, but if you present yourselves to the community as a couple who live together, well, that may be enough.
The other thing I would note is just because people live together does not mean the partner is automatically bringing in money. Your social assistance officer has to determine that you are living with someone and that person also has a chargeable income in order to cut off your benefits.
This column is not intended to provide legal analysis or opinion of your situation. Rather this column is meant to stimulate discussion and create awareness of various situations in which you should contact a lawyer. If you have a question you would like to see addressed in this column, please email me at: tyoung@patttersonpalmer.ca. Tuma Young is an associate with the Truro office of the law firm of Patterson Palmer-www.pattersonpalmer.ca
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