Law Times

Page 6 September 16, 2013 • Law timeS COMMENT u Editorial obitEr By Glenn Kauth A reasonable response to multiple murderers C anada's courts experienced a significant milestone last week as an Alberta judge considered a proposed 40-year period of parole ineligibility for triple murderer Travis Baumgartner. While there are lots of good reasons to be skeptical of the government's crime crackdown more generally, there's no doubt Baumgartner is a good candidate for a harsh rebuke. This month, he pleaded guilty to two counts of second-degree murder for killing two colleagues as well as first-degree and attempted murder in relation to two other co-workers. He shot them while they were refilling a bank machine in June 2012. At the time, Baumgartner, 21, was having major money troubles. While he would have received a life sentence with no chance of parole for 25 years under the law as it stood until recently, the Protecting Canadians by Ending Sentence Discounts for Multiple Murderers Act allows judges to impose the parole ineligibility period consecutively. That means the court could have sentenced him to 75 years with no chance of parole, although counsel made a joint submission of 40 years. Still, it's worth questioning whether there's much point to the new regime (and some lawyers doubt the legality of the sentence in Baumgartner's case given wording in the law requiring a previous conviction). Murderers sentenced to life don't get parole automatically anyway, so someone like Baumgartner may have served more than 25 years regardless. At the same time, courts also have to consider issues such as the totality principle, and it's arguable that, had counsel gone down that route, sentencing Baumgartner to the maximum of 75 years with no chance of parole would have been unduly long and harsh. Baumgartner's crime was particularly heinous, but beyond denunciation and deterrence, what would the point have been of sentencing him to 75 years with no chance of parole? What incentive would he have to behave and rehabilitate himself? The law as it now stands, then, clearly allows for improper outcomes. But given that it's one of those rare legislative amendments that allow for judicial discretion over whether to impose a harsher sentence, it's not unreasonable. There's no doubt many Canadians would consider 25 years too lenient for Baumgartner, so it's not unfair for the law to acknowledge that while providing judges leeway in how they handle the issue. — Glenn Kauth Succession laws disadvantaging women have long history T his spring, Parliament passed the Succession to the Throne Act to provide that birth order alone, not gender, would henceforth govern succession to the Crown. In any event, the birth of Prince George means the issue won't arise again for another generation. But the move to overturn the ancient law of primogeniture is a reminder of the importance of the law of succession despite its slow pace of change. U.S. legal historian Lawrence Friedman has called the law of succession the "genetic code" of the social order, suggesting that any radical change in the law of inheritance would alter the social structure within two or three generations. Primogeniture accompanied the settlers to British North America, but the Maritime provinces got rid of it as fast as they could. They all abolished it in favour of partible inheritance, although it came with a twist as the eldest son got a double share of the property of the deceased intestate parent. Why? Because the puritans of Massachusetts had done so, believing they were following a biblical injunction. New Englanders dominated the legislatures of the Maritime provinces in the early years and brought their legal culture with them. As a more democratic and egalitarian ethos Law Times different. Who said succession emerged by Confederation, law was boring? authorities quietly dropped That's The other big change over the double share. History the years has been the rise of In Ontario, the abolition of the spouse, especially the wife, primogeniture was a much bigin the law of intestate succesger deal. The Constitution of sion. Historically, inheritance 1791 had provided for a landwas all about blood. Spouses ed aristocracy after all. Even weren't blood relatives. As a rethough an aristocratic political sult, they occupied a marginal order didn't develop as planned, place in the scheme of sucprimogeniture symbolized a cession law. Wives got dower deferential, hierarchical society Philip Girard while men got curtesy through in a way that appealed to the life estates in their late spouse's colonial elite. Eighteen bills to abolish primogeniture failed before the re- realty. It was the children who needed the property to carry on the family line. form finally succeeded in 1851. Dower did play an important role in Even then, Ontario hung on to the fee tail, even as most other provinces abol- protecting widows on farms, however. ished it, until 1956. That's right — it was Nonetheless, as the population became 1956, not 1856. The bill to abolish primo- more urban, dower applied to a smaller geniture applied only to fee simple estates. number of people. Thus, the legislature The fee tail continued to descend by the created the preferential share for childless canons of primogeniture until its abolition, widows in 1895. This was a set amount, iniso those who really wanted to mimic the tially $1,000, that the widow could take off British aristocracy could still do so. Today, the top of her deceased husband's intestate you can get a peek at that vanished world estate and it applied to all assets, not just by watching Downton Abbey as poor Lord land. But the rest of the husband's property Grantham holds his estate in fee tail male. went to his blood relatives, usually siblings. Individuals still had complete testaThis means that none of his three lovely daughters can succeed to it. But if one of mentary freedom until the 1920s when dethem married his male heir, the hand- pendants' relief legislation came into play. some young Matthew Crawley, it would be It allowed the widow to apply to vary the Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 • Tel: 416-298-5141 • Fax: 416-649-7870 www.lawtimesnews.com • clb.lteditor@thomsonreuters.com • @lawtimes Director/Group Publisher . . . . . . . . . . . . Karen Lorimer Editor in Chief. . . . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . . . . . .Yamri Taddese Staff Writer . . . . . . . . . . . . . . . . . . . . . . Charlotte Santry Copy Editor . . . . . . . . . . . . . . . . . . . . . . Mallory Hendry CaseLaw Editor . . . . . . . . . . . . . . . . . Adela Rodriguez Art Director . . . . . . . . . . . . . . . . . . . . . . Alicia Adamson Production Co-ordinator . . . . . . . . . . . . . Catherine Giles Electronic Production Specialist . . . . . . . Derek Welford Advertising Sales . . . . . . . . . . . . . . . Kimberlee Pascoe Advertising Sales . . . . . . . . . . . . . . . . Steffanie Munroe Advertising Sales . . . . . . . . . . . . . . . . . . . . . . . Grace So Advertising Sales . . . . . . . . . . . . . . . . . . . . Joseph Galea ©2013 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $179.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $145 + HST per year for online only. Single copies are $4.50. Circulation inquiries, postal returns and address changes should include a copy of the mailing www.lawtimesnews.com will if the husband hadn't left enough for her proper support. This law and the preferential share thus provided some important protections for less wealthy widows. But it fell to the Succession Law Reform Act to cement the victory of the spouse over the surviving children and other relatives. Since 1977, if there are no children, the surviving spouse takes all of the deceased person's property. Even if there are children, the preferential share is now a healthy $250,000 so that in a large proportion of intestacies, the surviving spouse will take all. The spouse shares the surplus with any surviving children. The final frontier in this development is the position of the unmarried conjugal partner. In March 2013, British Columbia became the first province to provide intestate succession rights to common law spouses with whom the deceased cohabited for two years prior to death. They now have the same rights as formally married spouses, and if two or more "spouses" survive the deceased, judges will divide up the assets as they see fit. LT Philip Girard is a legal historian and professor at Osgoode Hall Law School. He's also associate editor at the Osgoode Society for Canadian Legal History. His e-mail address is pgirard@osgoode.yorku.ca. label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Ellen Alstein at ............ 416-649-9926 or fax: 416-649-7870 ellen.alstein@thomsonreuters.com ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Kimberlee Pascoe ...............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Grace So .............................................416-609-5838 grace.so@thomsonreuters.com Joseph Galea .......................................416-649-9919 joseph.galea@thomsonreuters.com Steffanie Munroe ................................416-298-5077 steffanie.munroe@thomsonreuters.com

• Cover