This paper explores how new regulatory technologies and front-line decision-makers reshape one another. Drawing on a recent qualitative study of caseworker decision-making in the Ontario Works program, it demonstrates the dialectical relationship between new case management software and caseworkers. While new technologies may attempt to deskill and decentre front-line decision-makers, transforming them into data entry clerks, caseworkers learn how to expertly translate and input client data to produce decisions that more closely match their interpretation of clients’ needs and welfare laws. The ways in which workers “manipulate the system” to produce a particular decision, though common knowledge among their colleagues, are black boxed to program managers, auditors, and benefits recipients.

Legal mobilization in the courts has emerged as an increasingly important social movement strategy, which complements other political strategies. This paper explores legal and institutional factors that can account for the varying levels of legal mobilization in countries with a civil law system. It examines the different legal opportunity structures (LOS) (such as judicial access and material and procedural law) and the extent to which strategic litigation has been employed by trade unions and other social actors to promote equal pay in four European countries: Switzerland, Germany, France, and Poland. While every component of LOS influences legal mobilization, legal factors and legal context alone are not sufficient to explain the observed variations. Rather, they constitute an important general framework in which other social and political factors, such as norms about gender roles, equality, and litigation, are also significant. Two issues seem to be especially relevant and have emerged as a rewarding field of analysis—the role of media coverage and organizational action frames.

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.

Nationhood can be defined either positively, which will lead to a civic model of citizenship, or negatively, from which an ethnic model of citizenship will ensue. Each approach has a direct, formative effect on a nation's political power and on its national and international relations. The ethnic model of defining First Nations, advanced by colonial governments via legislation and modern-day treaties and adopted by First Nations, diffuses First Nations political power and distorts First Nations national issues by reframing them as primarily social and economic disadvantages. Conversely, an inclusive civic model of nationhood will enable First Nations to rebuild and maintain their political strength and integrity by moving far beyond establishing their boundaries and internal identity on blood and ethnicity. Current-day political and legal discourse on self-government, aboriginal rights and title, and treaties is largely founded on western constructs of nationhood that arise from European history and cultures. First Nations constructs of nationhood remain unarticulated or obscured, or are discarded at the self-government and treaty negotiation tables to the detriment of First Nations. The consequence of this approach is to further entrench Canadian structural power imbalances rather than create positive political, economic, and social change for First Nations. A different approach is necessary. First Nations and western constructs of nationhood and citizenship must be critically examined and compared, and First Nations must begin rebuilding inclusive, viable, civic societies based on nations, not on ineffective Indian Act bands.

Questions about the ways in which colonial subjects were acquired and maintained, and how it was that multiple and often contradictory sovereignties came to overlap in history, may not be purely academic. We raise them today because they spring from issues that remain unresolved, concerning rights to land, resources, and self-determination. Following recent scholarship on the English East India Company, the author redefines the Hudson's Bay Company, during the period before widespread settler colonialism, as a state (or “company-state”), and in this way argues that the HBC-state possessed its own kind of sovereignty. The article make three main arguments: that it was up to the HBC, not the Crown, to found Rupert's Land, defend its establishments, make alliances with locals, and challenge intruders; that HBC rule extended to cover not only the company's employees but, eventually, an indigenous “home guard” population; and that the HBC welfare regime transformed the relationship between ruler and ruled.

The courts' continuing treatment of aboriginal oral histories as cultural artefacts is appallingly ethnocentric despite recommendations to consider the perspectives of aboriginal peoples and adapt the law of evidence. In this paper, I describe how Chief Justice McEachern of the British Columbia Supreme Court responded when a Gitksan witness, Gwaans, presented her adaawk as evidence of Gitksan land ownership and social organization. The Court was not able to hear or accept the adaawk as presented - a legal and political institution rather than a simple cultural artefact or chronological history record. The forms of expression, symbolism, and inter-connections between the worlds of spirits, humans, and animals proved to be beyond the grasp of the trial judge. Will the adaawk be treated any differently in future litigation? This paper addresses a number of concerns such as having the judiciary (1) apply a reductionist approach to the adaawk, and (2) evaluate the adaawk according to the rules of court instead of those inherent in the adaawk.

Most of the draft documents, memoranda, communications, and other textual materials amassed by government agencies do not become public record unless efforts are taken to obtain their release. One mechanism for doing so is “access to information” (ATI) or “freedom of information” (FOI) law. Individuals and organizations in Canada have a quasi-constitutional right to request information from federal, provincial, and municipal levels of government. A layer of bureaucracy has been created to handle these requests and manage the disclosure of information, with many organizations having special divisions, coordinators, and associated personnel for this purpose. The vast majority of public organizations are subject to the federal Access to Information Act (ATIA) or the provincial and municipal equivalents.

We have been using ATI requests to get at spectrum of internal government texts. At one end of the spectrum, we are seeking what Gary Marx calls “dirty data” produced by policing, national security, and intelligence agencies. Dirty data represent “information which [are] kept secret and whose revelation would be discrediting or costly in terms of various types of sanctioning.” This material can take the form of the quintessential “smoking gun” document, or, more often, a seemingly innocuous trail of records that, upon analysis, can be illuminating. Dirty data are often kept from the public record. At the other end of the disclosure spectrum are those front-stage texts that represent “official discourse,” which are carefully crafted and released to the public according to government messaging campaigns.

This paper traces the sensory dimensions of nuclear imperialism focusing on the Cold War nuclear weapons tests conducted by the United States military in the Marshall Islands during the 1950s. Key to the formation of the “nuclear sensorium” were the interfaces between vibration, sound, and radioactive contamination, which were mobilized by scientists such as oceanographer Walter Munk as part of the US Nuclear Testing Program. While scientists occupied privileged points in technoscientific networks to sense the effects of nuclear weapons, a series of lawsuits filed by communities affected by the tests drew attention to military-scientific use of inhabitants’ bodies as repositories of data concerning the ecological impact of the bomb and the manner in which sensing practices used to extract this data extended the violence and trauma of nuclear weapons. Nuclear imperialism projected its power not only through weapons tests, the vaporization of land and the erosion of the rights of people who lived there, but also through the production of a “nuclear sensorium”—the differentiation of modes of sensing the bomb through legal, military, and scientific discourses and the attribution of varying degrees of epistemological value and legal weight to these sensory modes.

Invoking a cultural defense has become a popular but controversial legal strategy. After explaining that the scope of the cultural defense is broader than is often understood and that it is used to mitigate punishment, create exemptions from policies, and increase the size of damage awards, I identify the normative principles that justify such a defense. Although it may be defended as a matter of principle, if this defense has any chance of being formally adopted, policies must be established to prevent its misuse. I propose a cultural defense test and show how it could be applied appropriately in a few cases. Following the analysis of its proper use, I demonstrate the potential for abuse by showing how in particular cases cultural arguments failed to meet the requirements of the cultural defense test I propose. Finally I recommend ways to assist courts in finding cultural experts who can authenticate the cultural claims.

This article tackles the integration of intersectionality into Canadian antidiscrimination law practices by arguing that treating the grounds of discrimination discretely contributes to the further marginalization of multi-discriminated individuals and groups. After tracing the origins and evolution of the intersectional approach to discrimination, it examines the critique addressed by the proponents of intersectionality to mainstream antidiscrimination law. Drawing on a jurisprudential analysis of 30 complaint cases claiming intersectional discrimination treated in Canadian and Quebec courts in the last 20 years, the authors set up a typology of the modes of conception of discrimination by the courts: monistic, compartmentalized, additive, and holistic (intersectional). Institutionalizing intersectionality within antidiscrimination law may be a promising avenue to reconfigure equality-safeguarding judicial apparatuses so as to better enable the struggle against multiple and interlocking forms of oppression and discrimination. Yet it can also become a liberal practice of “diversity management” that obscures structural inequalities and hallows a discourse based on individual vulnerabilities.

Self-regulation in the legal profession has recently, as it has on previous occasions, come under a barrage of criticism. This paper examines a narrow aspect of self-regulation, the processing of complaints through to dispositions within the disciplinary system of the Law Society of British Columbia between 1978-1988. Statistics and case reports of the Law Society are used to examine the disciplining of lawyers in light of a model which encompasses the benefits of self-regulation (funnel in) and criticism of it (funnel out and funnel away). While suggestions are made for improving the present system there is some question as to whether self-regulation will survive the rapidly changing nature of the legal profession as it bends to national and international pressures.

In the new, post-Soviet Russia, some people have been excluded from the possibility of possessing human rights based on different identity claims. Lesbians and gay men are among those who are excluded. Though in some states the mechanism of this is manifestly inscribed in the law, in Russia the mechanism is hidden in the field of silence: the field of discourse on homosexuality is full of lacunas. While the most productive speakers are certainly LGBT activists, the most passive ones are the state officials. These forces come into discursive play where rights are at stake. The purpose of this paper, based on original research on the emerging activism of gays and lesbians in Russia, is to uncover the regulative features of silence in the Russian discourse on homosexuality.

This paper argues that understanding the potential roles law and the state can play as transformative tools in counter-hegemonic feminist struggle requires that they be historically and structurally situated and contextualized, for both can be and have been facilitative as well as repressive. The paper examines, first, the negative consequences of using criminal law and the criminal justice system as instruments of reform, arguing that criminal law lacks transformative potential because of its particular role vis-à-vis the welfare state, dominant ideologies, and the struggle for change. Rights struggles are examined next, and it is argued that feminists should engage with law only under certain specified conditions to advance particular aims. The paper suggests some legal dead ends feminists should avoid, then examines alternative strategies which, it is argued, have the potential to empower and thereby to produce real and lasting improvements in women's lives.

This article investigates a downtown revitalization project in a Canadian city and the problem it encountered to shed light on neglected aspects of urban revitalization, security provision, and knowledge transfer. With a gradual shift to “market friendly” downtown land-use, Windsor's core underwent expansion of a night-time, youth-oriented, retail alcohol economy. A security problem with moral dimensions emerged and was deemed to detrimentally affect police patrol resources, residential development and living, and retail business. Using governmentality and Latourian-influenced analytical tools, attention is paid to three interrelated facets: (1) the role of Windsor's downtown business improvement association (BIA); (2) the influential movement of a consultant's report through urban institutions rendered responsible for revitalization; and (3) resulting measures, including an interim control bylaw and then a zoning bylaw targeting and redefining a particular type of licensed liquor establishment called a “kiddie bar.” The implications of this analysis for understanding the role of BIAs, governance “from below,” and knowledge transfer are discussed.

Race and racism have long played an important role in Canadian law and continue to do so. However, conducting research on race and criminal justice in Canada is difficult given the lack of readily available data that include information about race. We show that data on the race of victims and accused persons are being suppressed by police organizations in Canada and argue that suppression of race prevents quantitative anti-racism research while not preventing the use of these data by the police for racial profiling. We also argue that when powerful institutions, such as the police, have knowledge that they keep secret or refuse to discover, it serves the interests of those institutions at the expense of the public. Fears that reporting of racial data will result in racial profiling or the stigmatization of racialized communities are not assuaged by the repression of this information. Stigmatization may still occur, and racial profiling can continue to happen, but without public knowledge. Quantitative anti-racist research requires consistent, institutionalized reporting of race data through all aspects of Canadian justice. We outline what data are available, what data are needed, and where consistency is lacking. It is argued that institutional preferences for white-washed data, with race and ethnicity removed, should be subrogated to transparency.

In Canada, there are persistent allegations and some empirical evidence suggesting racialized police bias; certain (non-White) groups appear to face over-enforcement as criminal suspects and under-enforcement as victims. Yet, it is challenging to prove or disprove these claims. Unlike other countries, where governments routinely publish police-reported crime and criminal court data identifying the race/ethnicity of criminal suspects and victims, Canada maintains a ban on the publication of such data. In this article, using an intersectional and critical analysis, we examine 127 prosecuted (predominantly domestic sex) trafficking cases and explore related claims of racial and gender bias together with sensationalism in the enforcement of Canadian anti-trafficking in persons laws. Our findings align with other empirical research observing the racially selective identification and prosecution of sex trafficking cases through a heteronormative and gender binary lens. Whether real or perceived, racial—alongside gender, sexuality, economic, citizenship, and occupational—bias has significant adverse consequences for the equality, liberty, security, mobility, labour, and access to justice rights of the Indigenous, Black, Arab/Muslim and other racialized communities being policed. Our data reveal a clear and pressing need to publish race-disaggregated crime and criminal court data and to challenge deeply ingrained stereotypes using various means.

The problem of universalism and relativism in human rights needs to be considered through ethnographic examinations of the mobilization of global human rights in local political struggles. Using the example of a local movement against gender violence in the United States, this article argues that the rights approach provides important resources for local movements but contains particular Western concepts and categories of subjectivity. Given the extent to which legal strategies are subverted within and outside the legal system, here the rights strategy creates new cultural spaces far more than it produces coercive intervention. A framework of legal pluralism and local mobilization provides a perspective which moves beyond the dichotomies of the universalism/relativism debate.

Interpol is the most widely recognised ‘brand name’ in transnational policing, but to whom, or what, is it accountable? In the democratic countries of the West, debates and discussions about accountability frameworks for policing agencies have typically focused on organisations that have a legally defined and narrowly circumscribed jurisdiction, referred to in this paper as the ‘standard paradigm’ for policing accountability. There is a lacuna in this literature which has to do with those few agencies that operate transnationally and which, in important but ill-understood ways, are only partially bound by the jurisdictional purview of sovereign nation-states. This paper examines the accountability framework of Interpol, with particular reference to its historically questionable status as an Intergovernmental Organisation (IGO). It looks at Interpol's modus operandi and explains why its workings can potentially become the subject of hot political contestation. It considers some of the important articles of the organisation's constitution and reflects upon the agency's changing role in policing the globe subsequent to the 9–11 attack. The nature of Interpol's accountability will be analysed by reference to a typology that includes internal, external, formal and informal accountability mechanisms. It is argued that a fundamental challenge for transnational institutions is how to create and maintain the lines of democratic accountability that render them legitimate.

This article is based on fieldwork conducted in Montreal and Ottawa, between 2005 and 2009, with homeless persons in the criminal justice system and actors working at various levels in the criminalization and prosecution process. It analyses the strategies of control applied to homeless persons and their experiences in the judicial system in relation to criminal offences associated with their use of public spaces. The authors suggest that the issue of the visibility or invisibility of homeless persons is central to the tensions that characterize their dealings with the criminal justice system: although their visibility in public spaces contributes to their identification and profiling based on social characteristics, invisibility leads to violations of their fundamental rights and is a barrier to access to justice when they become involved with the justice system.