How do we protect members of marginalized and vulnerable groups? How do we ensure that the legal system does not exacerbate their vulnerability? These concerns, which arise in both civil and criminal contexts, lie at the heart of Canadian jurisprudence insofar as it tries to reconcile legal regimes and structures with personal autonomy and dignity. They are also pressing and timely. To name but a few examples from the past six months, the Supreme Court in Bedford and Rasouli, the Ontario Court of Appeal in Nur, and the Alberta Court of Appeal in Myette have all struggled with the proper balance between the protection of the vulnerable and the letter of the law.
The papers in this issue examine the ways in which particular vulnerabilities interact with the law, and whether these interactions are of the kind acceptable in a free and democratic society. The first considers the tension, in the context of religious observance that make the victim particularly liable to suffer certain harms, between the responsibility of the tortfeasor to take his victim as he finds him and the responsibility of the victim to mitigate his damages. It goes on to suggest that a highly contextual and fact-specific approach, rather than the application a more generalized test or set of indicia, will provide the best means of determining where the tortfeasor's responsibility ends and the injured party's responsibility begins.
The second paper examines the practice of using youth criminal convictions to impeach an accused's credibility in a subsequent...