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Archive for the ‘Feminist Legal Studies’ Category

Here’s a much-loved resource to help you start the new year on the right foot– an alternative orientation guide to law school with awesome chapters like “A Feminist Approach to Criminal Law” and “Queering Legal Education”. How exciting is that?! Thanks Debra Parkes for sharing this!

http://www.nawl.ca/en/component/content/article/502-gender-and-th-law-handbook

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This just in!

The Ontario Court of Appeal today released its decision in Bedford v Canada, a landmark lower court decision that found that provisions 210 [bawdy house], 212(1)(j) [living on the avails], and 213(1)(c) [communicating in public for the purpose of prostitution] of the Canadian Criminal Code unconstitutionally violate the Charter rights of sex trade workers. The CA has upheld the finding that 210 is unconstitutional, has read in an added element of exploitation to 212(1)(j) and has allowed the appeal of 213(1)(c).

We’d love to hear what you have to say about this – have a look at the complete decision here. It’s a long one, but undoubtedly worth a look-see.

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Those who attended the panel discussion last week on “Women in Corporate Law: Is the Gender Divide Fact or Fiction” (or those who missed it but are interested in the topic anyway) may be interested in this article by Prof. Aaron A. Dhir (Osgoode Hall): “Towards a Race and Gender-Conscious Conception of the Firm: Canadian Corporate Governance, Law and Diversity” (2010) 35  Queen’s L J 569. Prof. Dhir is currently writing a book on corporate governance and diversity, which we at the FLF plan on keeping an eye out for.

Join the discussion! Do you think corporate law is currently constituted as race and/or gender conscious? How does last week’s panel discussion fit into all of this? Do you have any news articles or readings to share with us on the topic? The FLF is always anxious to hear your thoughts!

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Now that exams are wrapping up, everyone has more time to enjoy the finer things in life… such as stimulating intellectual discussion on important, difficult issues! Hooray! Take for instance, the following: on December 8th, the Supreme Court heard arguments in the much-talked about R v NS case. Counsel for each side argued whether a complainant in a sexual assault case should be permitted to keep her face covered by niqab during testimony. Here’s a really great article from rabble.ca with two significant Robson Hall connections:law student Maria Kari authored the article, which features snippets of an interview with our very own Professor Karen Busby. It also includes a link to the factum submitted by LEAF, who had intervenor status at the hearing. Check it out! Great food for thought to accompany your turkey, latkes, 5 kilo box of mandarin oranges, etc.

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By Professor Karen Busby

In early 2011, a police officer in Toronto advised a group of law students that women who dress like sluts should expect to be victimized. Soon afterwards, Mr Justice Robert Dewar of the Manitoba Court of Queen’s Bench gave sentencing reasons from the bench that invoked similar beliefs. He found that mitigating factors in sentencing in a major sexual assault included that the complainant provoked the assault because she wore high heels, heavy make-up and a tube top.  He found that “sex was in the air” and that the defendant was a “clumsy don juan”. The defendant and the complainant, a much younger and smaller aboriginal woman, had known each other for about 20 minutes before the assault occurred. She had rebuffed his sexual advances; picked up a stick to use in self defence; and asked him in the course of the assault if he was going to kill her.  She had bruises on her backside and legs as well as cuts from running through the forest half dressed following the assault. Yet even after making these findings and rejecting the defences of consent and mistaken belief in consent, Dewar was obviously of the view that the complainant bore some responsibility for what had happened.

As happens in most sexual assault cases, the reasons on conviction and sentencing were not issued as formal reasons and therefore would have escaped any public scrutiny except that a Winnipeg Free Press reporter happened to hear about them. (He may or may not have been in court–this is not clear to me.) When the paper published the story, it was picked up across the country in a wave of indignation. Three weeks later, the newspaper received the sentencing transcript and posted it to their website.

Complaints were made to the Canadian Judicial Council about Dewar’s comments in the sentencing decision by various individuals including the Manitoba minister responsible for the status of women. The Crown filed an appeal against sentence. In August an appeal date of November 30 was set.

LEAF monitored the proceedings and in mid-October, upon seeing the Crown’s appeal factum, realized that the sentencing appeal had been abandoned and that the Crown had conceded that a new trial was necessary because of WD problems. (The SCC has recognized that WD’s complex formula for assessing credibility is a fertile ground of appeal in mistaken belief cases.)  The defendant’s position was that a directed acquittal was required.  LEAF filed an application for leave to argue that

  • There was no air of reality to the defendant’s assertion of mistaken belief that the WD credibility assessments did not need to be made.  The judge found an air of reality to the claim only because of his mistaken reliance on discreditable stereotypes.
  • Expose how discriminatory beliefs operated in the case.
  • Examine how these beliefs present additional barriers for indigenous complainants.

Like the sentencing decision, the conviction transcript(which LEAF received finally on October 21) reveals that the trial judge made his decision in reliance on stereotypical beliefs about women who alleged that they have been sexually assaulted.  In fact, the conviction transcript is in some ways more problematic than the sentencing decision. The opening line is “After a night of drinking when four people decide to climb into a car around 2:30 am to continue to party rather than head home to their own beds, something bad is bound to happen.”

The Winnipeg Free Press under a front page banner headline wrote an story outlining LEAF’s position. It also published a sidebar on Statistics Canada data on the dismissal prosecution of sexual assault cases in Canada and even more dismissal record in Manitoba—figures set out in the LEAF factum.    Only 31% of sexual assault cases on Manitoba result in a guilty verdict (Compared to 43% Canada wide) ad 67% if sexual assault cases in Manitoba are stayed before trial (compared to 46% Canada wide.) This paper then published an editorial calling for an explanation for the dismissal record. This story was picked up by other media including newspapers across the country. The Crown lashed back stating that the Statistics Canada figures were wrong. Its protestations are unconvincing–but the technical details of that story are for another blog.

The intervention hearing did not go well. The motions judge was critical of the media coverage and suggested that LEAF had activated its media machine. The defendant abandoned the appeal for an acquittal.

In mid-November, the CJC issued its decision. It found that Dewar’s conduct fell short of what was expected of a judge. However in light of his sincere apology and his willingness to take gender sensitivity training, no formal sanction was necessary. The CJC made no comments on the sentencing decision stating that this matter was before the Court of Appeal.  This assertion was, by the time it was made, inaccurate as the Crown had already abandoned the sentence appeal.  A few days later, the motions judge denied LEAF intervenor status on the ground that it was raising new issues.

It will be interesting to see what the Court of Appeal now does on November 30. In light of the Crown defence agreement that a new trial is necessary, it is possible–perhaps likely–that the court will simply issue a short decision making such an order.  One can only hope that they will take this case as an opportunity to comment on the trial judge’s appalling comments in the two Rhodes decisions and perhaps to acknowledge that judges, prosecutors and the police need to do more to address systemic discrimination in sexual assault cases in Manitoba.

Karen Busby is a professor in the Faculty of Law at the University of Manitoba and is the Academic Director of the Centre for Human Rights Research. On Thursday December 1 from 12 -1, Prof. Busby will be joining the FLF to facilitate a roundtable discussion on the Rhodes case.

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On November 2, Dr. Jennifer Schulz joined us to discuss “A Feminist Approach to Torts Law”. Sporting a very fashionable FLF t-shirt, Dr. Schulz encouraged the group of students in attendance to approach the law critically. This is of particular importance in mandatory courses, where many professors will unconsciously teach from a perspective of liberalism, a perspective that treats the law as objective and neutral, even where inequalities are rampant. Although torts law may be presented as fundamentally objective, Dr. Schulz challenged us to think about ways in which torts law can benefit from feminist analysis.

A first and perhaps obvious example is the notion of the “reasonable person”. Professors and students may accept this standard as simple – the standard is simply reasonableness. We may all assume that our perspective on what is reasonable is the same, in reality, the opposite is true. This notion is sharpened when we consider that the “reasonable person” is just the “reasonable man”, the “bloke on the Clapham bus” from England. This standard was changed to reflect modern day political correctness, but has the way it is applied really changed? Feminist scholars have critiqued this approach, and we learned that two lines of thought have emerged in the literature. One approach recommends accepting that men and women do view the world differently and it might be useful to take about care in a positive way, rather than a negative duty to not to harm. The other approach is more radical as it questions the efficacy of relying on objective standards, and calls for focusing on the actual tortious event and how someone with that person’s experiences would react in the circumstances. This approach recognizes that nothing is actually objective, even if we apply that label to the standards we use, and challenges an approach that allows for conflating the reasonable person with a normative standard of behaviour. As the student discussion suggested, taking this kind of subjective approach may be beneficial to balance out the racist, classist and sexist attitudes a person faces as soon as they enter a courtroom.

Dr. Schulz also highlighted the area of damages as another aspect of torts law that can benefit from feminist perspective. The principle of compensation (putting a person back to where they would have been had the tortious event not occurred) can actually perpetuate inequality. A thought-provoking example is that of lost future wages. Because pay inequity remains rampant, the damage awards women receive for lost earnings reflect this economic inequality. Damage awards are therefore structured along discriminatory lines. We learned that, to this day, courts routinely take a percentage off a damage award for contingencies to account for women bearing and raising children. 7 percent is routinely knocked off of the damage awards women receive simply because women shoulder a disproportionate burden for child bearing and rearing in society. 

Another topic in torts that cries out for feminist critique is the treatment of mothers. The case of Dobson v Dobson, where the Supreme Court held that a mother does not owe a duty of care to her fetus, is one example. While this case is heralded as a feminist victory, the result also meant that a mother who gave birth to a disabled son as a result of her negligence was unable to collect insurance money to help her raise her child. The tension in this case is clearly worthy of further discussion. Finally, Dr. Schulz pointed to so-called “wrongful birth” cases and noted that there is judicial reluctance to ever call the birth of a child damages or harm, therefore they don’t want to compensate for these damages or harm. Yet, the burden for child raising falls disproportionately on women, thus this is another very gendered example of not acknowledging women’s damages in the way that men’s would be.

The lunch-hour discussion wrapped up with some very thoughtful comments and questions from students in attendance. Certainly, there is much to consider around the notion of standard of care. Why not utilize a concept of actual care? As Dr. Schulz posited, why do we obsess over compensatory principles to “equalize” a person, when the law could actually care about an individual and seek to help them as much as possible in a given case. I think I can speak for all in attendance in saying that we left the room challenged and encouraged to approach doctrinal law courses with a critical perspective and to ask the difficult questions, beyond facts, ratio and holding: who does this decision benefit? Who is the law really helping? What is the actual result of this? Is it really true that this is neutral?

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Dayna Steinfeld is co-chair of the Feminsit Legal Forum.

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Eighty-two years ago today, the Person’s case was decided. Have a look at the following message from Manitoba Status of Women to find out more about the history behind this important anniversary (and while it is very significant, keep in mind that legal equality still had a long way to go for many Canadians).

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Today, October 18, is a historic day for women in Canada. It marks the 82nd
anniversary of the Person’s Day case, which gave many women in Canada the right
to personhood under the law.

Though it seems impossible today, before 1929 women in Canada were considered “persons in matters of pains and penalties, but (are) not persons in matters of rights
and privileges”.  Even though many women had won the right to vote federally in Canada in 1918, their rights continued to be undermined by the fact that they were not considered “persons” under the British North America Act (BNA Act), which governed Canada at that time.

This law had many implications for Canadian women. For several years, women’s groups across Canada had called for a female Senate appointment.  However, consecutive Prime Ministers refused to make these appointments, claiming that only “qualified persons” were eligible to sit in the Senate under the BNA Act.

In 1927, Emily Murphy, an Alberta magistrate, and four of her friends and
colleagues – Nellie Mooney McClung, Louise Crummy McKinney, Irene Marryat
Parlby and Henrietta Muir Edwards – decided to take action.  They submitted a petition to the Supreme Court of Canada, similar to what we know now as a constitutional challenge. This petition asked the Courts to interpret the BNA Act regarding the personhood status of women.  Canada’s highest court upheld the interpretation that women were not considered persons under the BNA Act.  Undeterred, the group appealed to the final court of appeal at that time, which was the Judicial Committee of the Privy Council in England. They emerged triumphant from the proceedings on October 18, 1929 – the word “persons” in the BNA Act was now interpreted to include both men and women!

As a result of this ruling, the first woman senator, Cairine Wilson, was appointed in 1930. It’s important to note, however, that only some women became persons under 1929 ruling. Many women, including Aboriginal, Asian and other women of colour, remained ineligible because of their race.  It was many years until the rights of these groups of women were fully recognized.

The five women who achieved personhood for Canadian women became known as the “Famous Five”. They set the stage for many constitutional achievements for Canadian
women, such as the equality provisions in the 1982 Canadian Charter of Rights
and Freedoms.  For this reason, each October Canada honours and celebrates the accomplishments of Canadian women in history, and looks towards an even brighter future for equality rights in Canada.

Read more details about the story of the Person’s Case at http://section15.ca/features/ideas/2004/12/22/persons_case/

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