Tag: Law

In all the yappitry about marriage and “tradition” recently, in the back of my mind I had that the tradition in Scotland was incredibly free until very recent times. I found a good reference to the principles today:

A `regular’ marriage was one for which the banns had been proclaimed and which was then celebrated by a minister in the parish church. An `irregular’ marriage, under Scottish law, could be of three kinds: per verba de praesenti (a mutual agreement to marry at that moment), per verba de futuro subsequente copula (a promise to marry in the future followed by sexual intercourse), and `habit and repute’ (cohabiting in such a way as to imply that mutual consent to a marriage had been given). It was only the forms of constituting it that were irregular. The marriage itself was in every way as binding as a regular marriage, and with the same restrictions: both parties must be free to marry, they could not be within the forbidden degrees of kinship and they had to be over the age limit (twelve for women and fourteen for men). Neither witnesses nor parental consent were necessary.

All very none of yer friggin’ business. The church, professionals and, indeed, the state are quite the johnny-come-latelies to the issue of marriage as well as most community ceremonies such as funerals. So why someone suggests we need to move back to Christian traditions, those are some of mine – I quite like the principle of “a promise to marry in the future followed by sexual intercourse”.

I found this passage on the sphere of autonomy from a recently reported Ontario Divisional Court appeal ruling from last July called Polewsky v. Home Hardware about court filing fees and poverty:

[50] As noted above, at para. 6, Gillese J. considered s.7 in obiter and found that the protection of s. 7 is limited to a person’s physical and mental integrity and does not protect civil and economic rights. However, where it is established that the fees are a barrier to justice, the issue becomes an access to justice issue, rather than one of economic rights.

[51] The appellants argued that for a poor person, “security of the person” must include the right to access the civil justice system, particularly the Small Claims court. The appellant cites Pleau v Nova Scotia (1998), 186 N.S.R. (2d) 1 (S.C., Prothonotary) [Pleau] for this proposition. Having considered Supreme Court of Canada jurisprudence on this issue, we are not convinced that the denial of access to the Small Claims Court is properly characterized as a breach of security of the person.

[52] The right to security of the person covers the right to personal autonomy, involving control over one’s bodily integrity and freedom from state imposed psychological and emotional stress (R v Morgentaler [1988] 1 S.C.R. 30, Rodriguez v. British Columbia (Attorney General) [1993] 3 S.C.R. 519).

[53] Although the right extends beyond the criminal law and can be engaged in other proceedings, such as child protection proceedings ((New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46) [G.(J).]), not all state interference with psychological integrity will engage s.7. Where the psychological integrity of a person is at issue, the right to security of the person is restricted to protection from serious state imposed psychological stress. For a breach of security of the person to be made out, the state action must have a serious and profound effect on the person’s psychological integrity. Not all forms of psychological prejudice will lead to a section 7 violation (G.(J.), Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307.

[54] We are not persuaded that the type of harm experienced by individuals who cannot pay Small Claims Court fees is appropriately construed as causing sufficiently serious or profound psychological harm to be in violation of s.7 of the Charter.

Interesting if only because it serves as another example of the courts shrinking from the monster it found in section 7 of The Charter which they now appears to want little to do with.