The search for missing or murdered Aboriginal women as well as the enquiry of the Truth and Reconciliation Commission (TRC) into residential schools both serve as a reminder that violence in Canada does not belong to the past. The individual and collective efforts of victims to express that violence and the deployment of the word “violence” in the public sphere are both part of what this article will analyze: the process of making that violence visible. Using a symbolic approach to power, this article analyzes the ways in which institutional means of justice, such as the TRC, address the making visible of violence from individual, community and societal perspectives.

Legal scholarship has changed dramatically in this century. Early in this century, legal scholarship found form and coherence in a method of study and teaching often referred to as the doctrinal approach. This approach placed its emphasis on the determination of rules, principles and procedures through the detailed analysis of cases — a method that goes back at least as far as Langdell's reforms at the Harvard Law School. There can be little debate as to the professional success of this approach to legal scholarship. It provided a method for teaching and for the writing of legal treatises and law review articles that endures to this day.

Yet if there was a purity to this methodological emphasis on “law in the books,” there was also an incompleteness that led others to call for research on the “law in action.” Often known as the legal realist movement, and best documented in its emergence at the Yale Law School, this approach to legal scholarship called attention to gaps between doctrine and practice. It is interesting to note that both the traditional doctrinal approach and legal realism were eager to claim the mantle of science. In doing so, the doctrinal approach focused on recorded cases as its units for observation and analysis, while the realists moved beyond these official accounts to examine the way the law actually was applied and affected people's lives. The realist's point was that the law often only affected social life indirectly and that doctrine frequently affected society in uncertain and unanticipated ways.

The Small Claims Court is designed to improve access to justice through a number of procedures, the net effect of which is to enhance the role of the judge as manager of the adjudicative process. The essay reports the results of interviews with 14 Small Claims Court judges in Montreal. Attitudes of judges about their responsibility to ensure a fair hearing, to assist litigants in presenting their cases and to adjust the substance of rules of law and evidence are surveyed. The study also canvasses judicial perceptions and responses to Small Claims Court plaintiffs who may be from ethno-cultural minorities. It concludes that despite their discretion to depart from a strictly adversarial adjudicative posture, judges rarely do so. It also concludes that judges do not see their role as requiring them to take special account of the expectations and understandings of ethno-cultural communities. Informality of proceedings, low filing fees, and the exclusion of lawyers are thought by judges to be a sufficient concession to enhanced access. Transforming the object and processes of civil disputes is not seen as a proper endeavour for the court

The dominant story of matrimonial property law reform in English Canada treats the farming family case of Murdoch v. Murdoch as the great catalyst for change, but there are persistent inequalities affecting farm women, even in provinces that have made progressive changes in the law of relationship breakdown. The farm is the quintessential family business and is both place of residence and source of income. Since the farm is not readily divisible, it is not surprising that all the major marital property law cases to reach the Supreme Court of Canada have involved farm property. What is surprising is that most provincial property reforms, though inspired by the Murdoch case, explicitly exclude farms from division, and those that include farms in the property to be divided still have mechanisms that tend to favour husbands. This article examines Canadian courts' gendered conceptualization of what constitutes a family business by examining the cases on farm property and the related legislative reforms. Feminists, and all women who have benefited from matrimonial property law reform, have an obligation to recognize the problems created by our persistent failure to understand the farm as simultaneously home and place of business.

Harry Arthurs' Law & Learning report, conceived by the Social Sciences and Humanities Research Council of Canada and carried to fruition in 1983 by a ten-person Consultative Group and a twenty-three person Advisory Panel, was a formative document in the history of Canadian legal education. My recollection of the release of the report is probably intensified because of the circumstances in which I experienced it the following year - a seminar room filled with cranky faculty members at the Faculty of Law at the University of Western Ontario, as stony terrain as any venue one might have imagined for the reception of such a report. I was then a relatively junior untenured professor, hoping to build a scholarly record in the field of feminist legal history, who had unwittingly found myself in a law school in which most faculty were devoted to building its reputation as a professionally conservative, black letter law institution. Into such a milieu strode my former professor and mentor, Harry Arthurs, whose habit of describing Osgoode Hall Law School as the “best law school in the Commonwealth” had not particularly endeared him to the Western professoriate previously. I felt like a deer in the headlights, and my sense was that Harry Arthurs himself was very ill at ease in a room that exuded defensiveness and hostility, as well as both latent and overt anger.

In 1975, the Bourassa government received legal advice that the James Bay Northern Quebec Agreement exceeded provincial jurisdiction. Legal counsel advised the constitutionality of the Agreement be secured through formal constitutional amendment. No such amendment was sought. Based on authorized access to Premier Bourassa’s archived dossier on the Agreement’s negotiation, this article sets out the following: 1) why the provincial government sought to encroach on federal jurisdiction; 2) the strategic means employed to insulate the Agreement from s. 91(24) litigation; and 3) provincial negotiators’ views on how judges would approach the Agreement going forward. This article confirms theoretical expectations about when governments might coordinate to transgress federalism’s division of powers: a high probability that courts would find a transgression occurred, and a high political cost should governments not coordinate on a transgression strategy.

This paper considers the role that litigation might play in ending the human rights crisis of solitary confinement in Canada while also examining the relationship of prisoner rights litigation to broader, anti-carceral social movements. The paper proceeds in four parts. The first section provides a brief overview of the widespread use of solitary confinement in Canada’s federal prisons and in provincial and territorial jails. Next, current litigation seeking an end to solitary confinement in the federal prisons system is located in the context of a long history of prisoner rights litigation in both the US and Canada. The third section considers the possibilities and challenges of pursuing prisoner rights litigation with broader critiques of the carceral state in mind. The paper ends with examples of anti-carceral lawyering efforts and identifies some elements of a prison abolitionist lawyering ethic.

Contrary to what prevails in the context of the Canadian and Quebec charters of rights, constitutional judges in India and South Africa have clearly recognized the justiciability and enforceability of social and economic rights. To explain this normative phenomenon, the author advance a hypothesis according to which the socio-economic conditions and the level of development of a country and the ideological context in which constitutional standards were adopted and are interpreted constitute factors that inevitably influence the courts and the conception judges have of human beings. The author therefore bring to light the formal conception of the person that Canadian judges promote by over-valuing individual autonomy in the interpretation of sections 7 and 15 of the Canadian Charter of Rights and Freedoms, and note that in countries marked by extreme poverty, the case law on socio-economic rights is more vibrant, since the Indian and South African supreme courts recognize human beings in all their dimensions.

This article gives a schematic overview of metis aboriginal rights from the Huron and Superior Treaties of 1850 to the Mackenzie Valley Treaty of 1921. It traces the evolution of federal policy in several stages: treating Metis as Indians, followed by individual grants of land, scrip and money. Pragmatism and expediency led to many inconsistencies in policy, but there were also pressures of administrative precedent favouring rationalization. Awareness of this history is essential in determining what metis aboriginal rights, if any, are still “existing” under s. 25 of the Constitution Act, 1982.

The Law Society of Alberta was given an almost exclusive jurisdiction to discipline Alberta lawyers in the 1920s. “The Black Sheep” uses the records of governments, courts and law societies in the old North-West Territories and Alberta to trace the emergence of this aspect of professional self-governance from 1885 to 1928. For most of this period, governments and then courts had disciplined lawyers. However, there was an increasing number of public complaints and criticisms directed against lawyers in the mid-1910s and especially after the Great War. By the 1920s the Alberta Government, the senior judiciary and the Law Society of Alberta decided, each for different reasons, that the best way to handle the complaints was to let the profession discipline itself. Ironically, the number of complaints increased even as the Society exacted greater discipline on lawyers.

This comment is approached with some trepidation. My eclectic background does not allow me the peace of mind I might have if I had arrived at this point in my life with a more connected or cohesive history. I therefore approach this review from at least three perspectives: (i) as a sociologist with training in traditional social science research methods and methodology, (ii) as a lawyer with some experience prosecuting in provincial court, and (iii) as an academic who has recently dabbled in feminist legal methods and methodology, in law and the social sciences. The first two perspectives require assumptions about social science research and law; the third perspective challenges, questions, and debunks many of these assumptions. Whether there can be an integration of the third with the first or the second is the subject of much debate among feminist academics in, and between, the social sciences and law. At times it is unclear which perspective is influencing my comments, and so I slide from one to another and back again.

This is an inquiry into the ways in which reasoning attaches to cultural context. It considers whether to seek grounds for decision-making in some common ground or in a recognition of diversity. The essay considers feminist criticisms of Habermas's discourse ethics and Benhabib's efforts to revise such an approach in response to cultural diversity. While the conditions for communication across cultures may be readily met with good will and good procedures, the conditions for reaching binding or consensual decisions are more challenging. The essay rejects the possibility of universal standards for reasoned decisions on three grounds. Reasons conforming to the standards of a multicultural public cannot rest on a single yardstick. Reasoning cannot be detached, in the Cartesian manner, from the corporeal being who is doing the reasoning. Reasoning is not a private and privileged mental process conforming to a unique set of rules. Drawing particularly on traditions of rhetoric from Aristotle to Perelman, the essay concludes: that reasons must be addressed to diverse audiences; that the affective and bodily specificity of deliberators is of central relevance (it matters who judges are); and that we must all continue our “moral education” in dialogue with diverse groups and ways of thinking.

In 1929, the British Privy Council reversed an earlier ruling by Canada's Supreme Court that Canadian women did not, under the British North America Act, qualify as persons. Historians have long heralded this so-called ‘Persons Case’ as a turning point in the recognition of Canadian women's rights. However, little attention has been paid to the case's origins, which date back to the trial of an alleged prostitute in Calgary in 1917. That case successfully tested the right of women to hold high public office in Alberta – in this case, Calgary Police Magistrate Alice Jamieson – and began the subsequent twelve-year battle. However, this victory was achieved only at the expense of the rights of another woman: the alleged prostitute Lizzie Cyr. At best, then, the ‘Persons Case’ should be regarded as a tainted victory.

L’interculturalisme québécois est un modèle de gestion de la diversité culturelle et religieuse qui, pour plusieurs, se distinguerait du multiculturalisme à la canadienne et ferait l’objet d’un large consensus au sein de la population québécoise. Résolument pluraliste, ce modèle distinct de gestion de la diversité aurait pu être opérationnalisé juridiquement dans le cadre constitutionnel canadien avant l’adoption de la Loi sur la laïcité de l’État. Or, le processus suivi par le gouvernement québécois pour faire adopter cette dernière, le 16 juin 2019, et tenter d’éviter que sa constitutionnalité puisse être contestée devant les tribunaux canadiens rend très difficile – voire impossible – la fondation juridique de l’interculturalisme québécois dans le contexte actuel.

The analysis proposed here defends the necessity to operate a shift in the terms that seem to dominate, at present, the thinking on new forms of slavery or servitude, in order to fully integrate gender relations as production and exploitation social relationships. In this regard, based on two field studies performed with domestic and agricultural workers subjected to the Canadian immigration programs, we must try to see how the work relations amalgamated under the concepts of “modern slavery” and “unfree labour” give rise not only to a working class that is excluded from the canonical wage-earning class, but also and simultaneously to a racialized, intrinsically sexual workforce: “non-nationals” who are also male workers and female workers whose bodies are put to work, exploited and branded differently.

This paper closely studies Scotland v Canada to reveal the normative and substantive justice challenges facing immigration detainees across Canada. The Scotland decision at the Ontario Superior Court certified a habeas corpus writ as an individual remedy to release Mr. Ricardo Scotland from a pointless, seventeen-month incarceration. The decision frames Mr. Scotland’s detention as anomalous or divergent from an otherwise-functioning system. Against this view, this paper argues that access to habeas corpus cannot remedy the detention system’s scale of injustices. The paper contextualizes Mr. Scotland’s incarceration and the Superior Court decision against two primary claims: first, that the Canadian immigration and refugee determination system is arbitrarily biased against certain minoritized individuals, therefore transforming some people into detainable bodies; and second, that the global criminalization of migration trend has nested an arc of penal practices into Canadian policymaking and law, and this arc has seemingly normalized indefinite detention for some migrants. The paper concludes that restoration of access to habeas corpus cannot be understood as a substantive remedy to address the miscarriages of justice in the Canadian detention system.

The limits of the normative nature of law may be illustrated in the current English Canadian context by apparently contradictory phenomena: legal defeats of welfare mothers (e.g. Masse and Falkiner), and the legal victories of lesbian mothers (Re K). Drawing upon Fine, this paper employs the analytic frame of form and content to analyse contradictions within the legal form, notably in respect of the definition of spouse and the regulation of relations of property and poverty, and the struggles of lesbian parents who have applied to the courts to formalize their relationships to their children by way of adoption, and who, in so doing, have challenged the normative content of spousal relations. In analysing law as a gendering strategy, it is necessary to be mindful that law may not be the dominant site through and in which gender relations are constructed, regulated, reconstructed, or resisted. In this paper, the author examines and analyzes the contradictions in the legal form that have been mobilized, the ‘stirring up’ of the content that has been done, and the constraints and limits that shape the results.

Ashley Smith’s experience in the adult prison system flowed from certain of its systemic features. This article considers whether and how it is possible to reconcile the basic commitments of sentencing law, including the legal aims of punishment, with that systemic portrait. The youth court that ordered Smith’s transfer to adult custody relied upon an idealized conception of adult imprisonment, just as ordinary adult sentencing courts do. Judges purport to stipulate the severity of punishment, but tend not to consider how prison conditions will shape the severity of the sanction. Even where a particular defendant is likely to face unique difficulties in custody, courts tend to take notice in limited and rare ways. Smith’s experience in adult custody challenges us to more clearly identify, and to consider extending, doctrinal sentencing rules that represent a judicial concern with the effects and prospects of imprisonment in particular cases.

Using two reports about the practice of racial profiling in Toronto, I argue that racial profiling must be understood as a category of governance. My argument for understanding racial profiling as a category of governance is to insist upon a move away from questions or investigations that ask whether racial profiling occurs as a police practice. Instead, by understanding racial profiling as a category of governance, I argue that scholars and practitioners can begin to expose how different racialized practices regulate the boundaries of citizenship and ultimately work to establish how citizen rights are organized, policed and implemented. I conclude by suggesting why it is useful to speak of a “category of governance” as a concept that has wider potential use in the study of racial profiling, particularly as it pertains to the variety of ways in which certain populations are made (or are not made) into subjects/citizens of modern nation states.