In 1995, Pamela George was brutally murdered by two young university athletes. The men were convicted of manslaughter and given light sentences. In this article, I examine the murder of Pamela George as gendered racial violence and continuing colonization of Aboriginal peoples. I suggest that as an Aboriginal woman working in the space of prostitution, Pamela George represented a body that could be violated with impunity. Respectable white men who journey temporarily into the zone of degeneracy to engage in an encounter in prostitution are not held accountable for violence that occurs so routinely in the spaces and on the bodies of the Other. Further, this relationship between bodies, space, and justice, in which zones inhabited by racial Others as well as zones of prostitution (often one and the same) are considered to be spaces in which universal justice does not operate, suggests how the violence remains invisible in the law. The constitutive features of this violence, its role in making white men and white settler societies, suggest why it keeps on happening and is so consistently denied in law. The identity making processes I describe are vital to colonization and, in this case, specifically to the colonization of Aboriginal peoples in Canada.

Legal pluralism is a contemporary image of law that has been advanced by sociolegal scholars in response to the dominant monist image of law as derivative of the political state and its progeny. The pluralistic image redirects law and society research toward the myriad normative orders outside the circle of “the Law.” This essay considers the epistemological foundations of both legal pluralism and the legal monist image of law against which its proponents are reacting. It argues that contemporary pluralistic imaginations rest on the same impoverished view of law and its subjects that sustains the traditional claim that law comprises only the processes and institutions emanating from the modern political state. The authors propose an alternative image of law in an effort to redirect the sociolegal studies research agenda.

Challenging the traditional social-scientific legal pluralism of reified cultures and communities, the idea of critical legal pluralism presented in this essay rests on the insight that it is knowledge that maintains and creates realities: a critical legal pluralism imagines legal subjects as “law inventing” and not merely “law abiding.” The authors argue that, once the constructive, creative capacities of legal subjects are recognized alongside the plurality of these same subjects, the relationship between laws and selves reveals its complexity. They acknowledge that their approach is only one of many possible critical legal pluralist approaches; but they maintain that any reconception of law within a framework of critical legal pluralism is a form of emancipatory prescription. As definitions of law are revised and rejected, new vistas are opened for sociolegal scholarship.

A “just punishment” is increasingly structured by actuarial probability frameworks. Actuarial risk technologies are often characterized as having supplanted much of practitioners' discretionary decision making with structured, quantitatively derived decision-making templates. Some scholars maintain that the transition to risk-based penality has led to “deskilling,” “scientification,” and “erosion of professional discretion,” or even to the elimination of criminal justice practitioners' use of professional discretion. This paper uses data from 71 semi-structured, open-ended interviews with criminal justice professionals to analyse how the introduction of risk tools shapes but does not eliminate discretion. We argue that risk tools are not simply imposed on criminal justice practitioners; instead, practitioners actively resist and embrace risk technologies and temper the impact risk tools have on their discretionary decision making. We maintain that the adoption of risk technologies reflects a negotiated process whereby practitioners welcome the professional advantages that these technologies afford while affirming the centrality of experience and clinical knowledge in decision making. We show how practitioners differentiate between the standardization intended by risk assessments and their own experiences and clinical knowledges, and how they exercise their discretion in an effort to mitigate the perceived discriminatory effects of the risk assessment. Thus, although risk tools are appealing to practitioners because their supposed “objectivity” makes them more defensible to the public, the adoption and use of these tools in the context of professional decision making is more complex and contradictory than much of the theoretical literature has assumed.

Whereas traditional conceptions tend to conflate territory and its physical spatial extension, this paper advances an argument to oppose such reductionism. It explores the features of a non-intuitive, radical conception of territory and proposes to apply it to law. Relationship, rather than space, is suggested to be at the conceptual core of territory, so that spatial and non-spatial territories can be seen as superimposed one onto the other and endowed with multiple connections, according to different scales and degrees of visibility. Territory is regarded as an activity of boundary-drawing and as a process which creates pre-assigned relational positions, both of which are key concerns for law. From this perspective, law is an inherently territorial endeavour. The focus of enquiry is consequently shifted to the actors who, by building and shaping their social relationships, draw different types of boundaries, on the technologies they apply, and the aims they attempt to achieve through boundary-drawing.

To engage in the question of what it means to decolonize law, we must ask by what authority a law has the authority to be invoked and to govern. In this paper, I describe the conditions necessary for the exercise of Canadian law as being the work of jurisdiction, and I call into question Canada’s legality and legitimacy in making jurisdictional claims. Decolonizing law means deconstructing the state’s grounds to inaugurate law on lands acquired through colonial settlement. By critically examining law’s geography and scope I call into question the modern definition of territory itself. Further, I draw attention to jurisdiction as a conceptual framework for understanding the specificities of settler colonialism; illustrate jurisdiction as a historical concept, distinct from territory and sovereignty; and show some of the ways in which jurisdiction is enacted to govern across multiple scales and issues.

The 1990s inaugurated a new era of policing the border, one in which a variety of legislative initiatives were introduced to regulate more tightly the flow of immigrants and refugees to Canada. Border control is closely linked to the internal policing of people of colour, stigmatising and monitoring such bodies in ways that clearly establish their subordinate status in the nation. In this article, I reflect on the practices involved in the policing of the border through an exploration of how individuals participate in, and experience, these practices. Specifically, I describe my own experience of how an individual judge performed the role of the imperial patriarch in a trial of a racial minority woman lawyer charged with immigration fraud. I do not make an empirical claim that the case I explore demonstrates racism and little else. Rather, my central concern is to describe the everyday performance of domination as it occurs in this trial. I seek to illustrate the kinds of things individuals say and do when they engage in making Canada White through the law and to suggest that such individual performances, in this case of hegemonic masculinity, are part of a national story of belonging, a story in which people of colour are marked as degenerate and white subjects are the bearers of culture and civilization. In the second half of the paper, I demonstrate this national mythology as it is expressed by elites.

Discretion on the part of front-line border officers is fundamental to exploring how nation-states sort out mobile populations at and near international borders. This discretion involves not only decisions about when, on whom, and on what legal grounds to act but also decisions about when and on whom not to act. Examination of non-actions completes the range of information needed to delineate unequal social sorting by the state. Unequal sorting is specified in the analysis of field materials through a novel prism, paying attention to why and how certain borderlanders are trusted in enforcement settings while others are considered potential risks. The allocation of trust and risk proves interestingly complex, revealing several major processes operating simultaneously, both class and race inequality and the enactment of the territorial nation-state.

As legal authorities consider the constitutionality of the laws surrounding prostitution in Canada, we have the opportunity to rethink some of the fundamental assumptions that have been made about sex work and the socio-legal responses to it. In this article we draw on the concept of structural stigma to analyze the stigmatic assumptions inherent in the Canadian laws and briefly describe their effect—the civic exclusion of sex workers. We then consider the ways in which these same assumptions of risk and immorality are reproduced in end-demand (partial criminalization), legalized (regulatory) models, and decriminalization. While the decriminalization of sex work is the response that relies on the least stigmatic assumptions, even the celebrated New Zealand model is not absent of moralization and “othering” discourse. Further reflection is required to conceptualize a policy approach that transcends stigmatic assumptions so as to respect the human and civil rights of sex workers.

The use of criminal-law powers to respond to people with HIV who place others at risk of HIV infection has emerged as a focal point of AIDS advocacy at global, national, and local levels. In the Canadian context, reform efforts that address the criminalization of HIV non-disclosure have been hampered by the absence of data on the contours, scale, and outcomes of criminalization. This article responds to that gap in knowledge with the first comprehensive analysis of the temporal trends, demographic patterns, and aggregate outcomes of Canadian criminal cases of HIV non-disclosure. The authors draw on insights into the role that rendering social phenomena in numerical terms plays for the governance of social life in order to make criminalization “visible” in ways that might contribute to activist responses. The article examines temporal trends, demographic patterns, and outcomes separately. In each instance, the pattern or trend identified is described, potential explanations for findings are offered, and an account is given of how the data have informed efforts to reform criminal law. Particular attention is paid to the following key findings: a sharp increase in criminal cases that began in 2004; the large proportion of recent criminal cases involving defendants who are heterosexual Black, African, and Caribbean men; and the high proportion of criminal cases resulting in conviction. The article closes with suggestions for future research.

Governmentality scholars document the new, pluralistic, post-Keynesian modes of public governance linking State and non State agencies. This emphasis on “governance from above” needs to be complemented by a focus on “governance from below” by non State actors, especially in urban areas. “Governance from below” may involve actors ranging from commercial organisations and citizens' initiatives, to organised crime and paramilitary networks operating as sites beyond the jurisdiction of sovereign law and public authorities within and between countries. In both rich and poor countries these may be antagonistic to but may also become enrolled in forms of public governance. This paper challenges the view that governance from below fills the vacuum left by the retreat of the central nation State. Rather, these developments signify complex forms of re-articulation of relations of governance from above and below, which may at times strengthen the legal authority of the central State.

In the last three decades, the public-private organization of policing in Canada has undergone significant change. It is now common sociological knowledge that there has been formidable growth in private security alongside evolving forms of private governance. These changing social relations have resulted in the prominence of actuarial practices and agents to enforce them. This paper examines how the Canadian socio-legal context affects and is affected by both private security and new, more aggressive, ‘parapolicing’ organizations. We update the state of knowledge on the powers of private security personnel by examining Criminal Code provisions in a post-Charter legal environment, comparing provincial trespass Acts, and analyzing how one aggressive ‘Law Enforcement Company’ as well as other private security firms, more generally, are both enabled and constrained by these legal provisions.

Foucault's innovative and influential explorations of sexual and moral regulation did not sufficiently explore the connections or contradictions between moral regulation and economic processes. This paper draws on Pierre Bourdieu's materialist concept of “cultural capital” in the elaboration of a model for the study of moral regulation based on the concept of “moral capital”. The accumulation of moral capital, it is argued here, mimics that of economic capital, and yet it also acts as an external limit to economic capital accumulation. This dialectical model is both elaborated and tested through a historical overview of philanthropic techniques for the moral regulation of the urban poor.

This paper reports on the perceptions and practices of men who have frequent unprotected sex with men in a socio-legal environment defined by the 1998 decision of the Supreme Court of Canada in R. v. Cuerrier. HIV-positive people are increasingly finding themselves in court since Cuerrier, and many are trying to take account of legal reasoning in their own conduct. The judicial construction of behaviour likely to transmit HIV relies on a set of presumptions concerning individual responsibility, rational and contractual interaction, and consenting adults that raises a series of ambiguities and uncertainties among HIV-positive people attempting to implement them in everyday life. While some express support for the reasoning in Cuerrier, others struggle with practical dilemmas in sexual interaction, and a minority strand of ethical reasoning advances a “buyer beware” principle. This latter view occurs in a social environment where HIV-positive people experience strong disincentives to disclose in the face of potential rejection or discrimination once their sero-status is known. Examination of the social consequences of Cuerrier raises questions about the viability of relying on the enforcement of disclosure, through threat of criminal prosecution, as an effective method of HIV prevention, especially when most practical, day-to-day HIV prevention occurs when safer sex is practised consistently regardless of disclosure.

Guaranteeing “certainty” (for governments, business development, society, etc.) is often the goal of state land rights settlements with Indigenous peoples in Canada. Certainty is also often seen as an unequivocally desirable and positive state of affairs. This paper explores how certainty and uncertainty intersect with the challenges of decolonization in North America. I explore how settler certainty and entitlement to Indigenous land has been constructed in past colonial and current national laws, land policies, and ideologies. Then, drawing on data from fieldwork among activists against land rights, I argue that their deep anger about their uncertainty regarding land and their futures helps to reveal how certainty and entitlement underpin “settler states of feeling” (Rifkin). If one persistent characteristic of settler colonialism is settler certainty and entitlement, then decolonization, both for settlers and for jurisprudence, may therefore mean embracing uncertainty. I conclude by discussing the relationship between certainty, uncertainty, and decolonization.

The scholarly analysis of public space, despite ideological differences, has tended to focus on the political and ethical dimensions of public space, construed as a site for encounters between people. This has been at the expense of what the author terms the “traffic logic,” a pervasive administrative view of public space that emphasizes pedestrian flow and motion, and tends not to discriminate between things and bodies. The paper illustrates the prevalence and effects of traffic logic with reference to By-Laws in the city of Vancouver. The author notes its important consequences through brief discussions of cases involving public protests and begging. While important, traffic logic's pervasiveness and bureaucratic commonsensicality render its reach and effects harder to discern. As a powerful yet mundane form of urban governance, it demands closer scrutiny.

How and why did Canada end up with a Truth and Reconciliation Commission (TRC) rather than a judicially based public inquiry in response to Indian Residential Schools? Using a constructivist-interpretivist approach with interview research with twenty-three key actors, this article traces the path toward the Indian Residential Schools Settlement Agreement. It examines in particular the shift from calls for public inquiry to truth and reconciliation. In sourcing the idea of a TRC, it gauges the balance between transnational influences and home-grown elements and suggests that two different approaches to a truth commission were merged during the settlement negotiations. One approach, associated with the Assembly of First Nations, focuses on accountability and public record, and the other, associated with survivor and Protestant organizations, is more grassroots and community-focused. This article looks at hybridity and gaps in the TRC’s design, suggesting that the two visions of a truth commission continue to exist in tension.

The Kingston Immigration Holding Centre (KIHC) is a purpose-built prison for individuals subject to security certificates, located on the grounds of Millhaven Institution in Bath, Ontario. KIHC was created in 2006 in response to controversy over the use of provincial detention facilities for long-term security-certificate detention. While the security-certificate mechanism and its related processes have been the subject of a growing body of critical socio-legal scholarship, the juridico-political space of KIHC has yet to be described or problematized in depth. The present study addresses this gap by providing a detailed account of the history of the facility and an exploration of the interactions within the Canadian insecurity field that shaped its emergence, governing arrangement, and everyday operations. Given the paucity of publicly available official information about KIHC, our study draws extensively on material obtained through requests filed under the federal Access to Information Act. Building on the existing literature, we frame security-certificate detention as a form of normalized exceptionality made possible by counter-law and argue that it conforms to the juridico-political concept of the camp. We then proceed to describe how this particular camp came into being, with an emphasis on the role played by interactions between professionals and institutions within the Canadian security field. The interagency contractual arrangement between the Correctional Service of Canada (CSC) and the Canada Border Services Agency (CBSA) that governs KIHC is outlined. We describe this arrangement as the product of the authority to detain indefinitely meeting the capacity to confine pragmatically, under the banner of national security, and consider its implications for CSC's correctional mandate. The KIHC facility emerges as an “ancillary exception,” the institutional reflection of attempts to reform and normalize the security-certificate mechanism. We conclude by making a case for the abolition of KIHC.

The Canadian state presents itself as tolerant, anti-colonial and self-critical. Yet, the legal justification for the Crown's acquisition of sovereignty and jurisdiction concerning Indigenous peoples and their lands, relies on the colonial era doctrine of terra nullius which is based on the proposition that Indigenous peoples were sufficiently inferior to enable the Crown to presume that their territories were unoccupied. This paper discusses how the doctrine of terra nullius becomes applied in Canadian law and its limitations as an acceptable proposition at this time in history. It then discusses and evaluates alternatives to that doctrine which have been proposed in various quarters in order to determine the possibilities for the conceptualization and establishment of a political and legal relationship between First Nations and Canada that is post-colonial in its approach and practice.

The paper begins with an outline of some legal and ethical principles regarding research confidentiality that frame researchers' choices, and then reviews the common law on privilege in Canada and the U.S. to show how researchers can design their research to maximise the legal protection of confidential research information. The paper describes various disciplinary ethics codes and the new federal Tri-Council Policy Statement on ethics to illustrate the principles that should be considered in the unlikely event that a Canadian court orders disclosure of confidential information that could harm a research participant. We conclude by proposing that universities and the three granting councils should campaign for statutory protection of research participants along the lines of the confidentiality certificates that are currently available in the United States for research on sensitive topics such as drug use, criminal activities, sexual behaviour, and genetic information.

There are three types of sexual moralism in evidence in the discussions regarding the regulation of prostitution: the overt moral fervour of the Victorian crusaders, the more covert moralism of contemporary crusaders (residents) and legislators, and the principled moralism of contemporary radical feminism. It is maintained—using arguments and evidence from the author's own and other Canadian research—that each type has contributed heavily to the failure to adequately evaluate the nature of sex work. As a consequence, our ability to develop appropriate social and legal policies has been severely restricted. It is argued that the key to appropriate social and legal reform lies in recognizing four points: prostitution per se is not different from other work; prostitution as currently practised is different; the evaluation of commercial sex must be conducted in the broader context of human sexuality; and it is essential to focus on the specificity of women, rather than the specificity of prostitution.