This paper shows the role of the courts in the advancement of gay and lesbian rights to be restricted to intervening when three conditions are present: after legislation has been felt by minority groups to be deficient; where stating principles rather than implementing them is involved, and when legislative modification is difficult to achieve because amendment of a rigid constitution is out of question, or in parts of the country where political conservatism has a similar effect. Decisions are grounded on equality, while other values put forward by gays and lesbians such as dignity, recognition, respect of identity and difference and social concerns will be endorsed only by dissenting judges, unless the majority is sure that their mention will have no practical consequence. However, this modest victory was not achieved at the cost of representing gays' and lesbians' interests or values as common with those of the dominant heterosexual majority. On the contrary it seems that the affirmation of the “right to difference,” centered on diversity, and the openness of this constructed identity might have led to a chain reaction starting with the evolution of public opinion as a consequence of lobbying and education by the gay/lesbian community, proceeding to create a new balance of power, more favourable to the gay/lesbian minority, and finally reaching more respect from courts and legislatures alike.

Since 1930, the mascot of Robertson'sR Marmalade, England's GolliwogR (who looks like Buckwheat, but a bit more nattily attired) has appeared on over 20 million pieces of merchandise—from teapots to toothbrushes to T-shirts … When Golly was criticized in 1984 by some of England's “oversensitive” black population, a Robertson's spokesman righteously declared, “the Golly forms part of our national tradition and attacking it is an attack on a part of British culture.”

This anecdote attracts both our cultural and legal attention. Capturing the central role of trademarks in national culture, it also points to a politics of ownership and protest. Accounting for its significance theoretically, however, is no easy task. Somehow, it resists easy accommodation in any of the three dominant approaches towards the commodified imagery of late capitalism.

This paper examines changes in Canadian sentencing legislation between 1984 and 1997 in relation to M. Foucault's genealogy of discursive practices. Foucault suggested three regulatory practices which were associated with contemporary projects of governmentality: punishment, discipline and risk management. The legislative changes regarding sentencing in court and conditional release decisions are reviewed to assess the extent to which the various regulatory practices have been adopted. It is suggested that Canadian sentencing discourse has become increasingly bifurcated around a combination of risk management and disciplinary strategies which are presented in a context of denunciation. The character of this arrangement and several of its anomalous features are examined.

This paper enlarges the discussion of normative systems by arguing that the professional domain is just as normatively “gendered” as any such systems at the societal level. Taking off from recent media discussion, the author underlines the extent to which the implicit normative systems of the work world are overwhelmingly male and she demonstrates how the currently accepted definitions distort our understanding not only of women's work but also of men's. She employs her recent research on women professionals (particularly architects and engineers) to argue that a variety of definitional norms of the professions are credible, but that these are differentially exclusive of women. She ends with a wide-ranging discussion of definitional criteria for feminists which would serve to ensure that women's modal experience within professional arenas is included to the same extent as men's, for women's contributions to the workplace can only be grasped if male normative approaches are abandoned.

Legal method, or the way in which legal claims are processed, is an integral component of the law's authority to include, exclude and deny claims and experiences. This paper explores the issue of sexual orientation and the legal construction of family as it emerges in the decision of the Supreme Court of Canada in Egan v. Canada. The analysis includes a detailed consideration of the ways in which the Supreme Court of Canada incorporates assumptions about the nature of family life as a relevant factor in its assessment of the meaning of the word “spouse” under the Old Age Security Act. The process by which notions of the normal family become legitimized through legal discourse is deconstructed using the work of Mary Jane Mossman and Michel Foucault. Mossman develops an analytic framework which illuminates the ways in which legal method works to preserve the power of law and the illusion that law produces “truth.” Michel Foucault considers both the ways in which knowledge is produced as truth, and its integral links to power.

Codes of ethics and Codes of deontology are proliferating in various domains. This paper investigates this social phenomenon by analyzing these codes, how they are justified and how they are applied. This analysis shows that two conflicting approaches are at work in this particular form of social regulation. The first approach is grounded in the traditional, legal sanction of human conduct. The second approach, notwithstanding the legal framework present at its inception, assumes that ethical advances are possible through the recogniton and adoption of shared values. Awareness of this tension between the two approaches to the social regulation of occupational activity sheds light on one aspect of modern legal criticism: the dominance of law over all other forms of social regulation.

Psychiatric expertise is necessary to the courts in many legal situations, both in criminal and in civil matters, and is subject to the same rules as any other expertise. However, psychiatry and its object are unique. The relationship between the judge and the psychiatric expert can be affected by many social or professional factors, or by legal or procedural matters.

While jurists speak of this relationship as a usurpation of the role of the judge by the psychiatric expert, psychiatrists believe that, on the contrary, their expertise is completely distorted by the judiciary process. In reality, however, this is not always the case; while psychiatric expertise is, generally speaking, one piece of evidence among many, it can also occupy a central place in the decision-making process.

Proposals for the demise of the notion of “legal pluralism” in sociolegal and legal anthropological studies have been put to the fore recently by various authors. In their view, the use of the notion carries connotations that basically misrepresent the constitutive dynamics of legal experience, up to the point of impeding the advancement of scientific understanding of law-in-society at present.

Feminism has a particular problem in dealing with questions of sexuality. This is directly tied to the fact that it is our sexuality which has so often been used to deny us rights. Our ambivalence has led some of us to make strange choices. For instance, some of us have joined with conservatives, our natural enemies, campaigning against pornography. This paper looks at another area in which conflicts within the feminist philosophy have worked to confuse our responses and allowed them to be used to undermine the very people we proclaim ourselves the protectors of: women. In two major cases since 1990, the Supreme Court of Canada has quoted feminist words to undermine the position of prostitutes in our society. In addition, LEAF failed to apply for intervenor status on behalf of prostitutes in either case. What does it mean when mainstream feminism finds itself unable to listen to the demands of prostitutes' rights groups and to help them get rid of the laws that make their work more difficult and dangerous? What does it say about feminism as a true “women's movement” that we find ourselves unable to honor other women's assessment of their position in society and their desires for change.

The decision of the Government of Canada in the fall of 2006 to terminate funding of the Law Commission of Canada was of a piece with the earlier decision of the government of Canada in 1993 to close the former Law Reform Commission of Canada. Unsurprisingly, the creation of the Law Commission of Canada was justified by the same general arguments as those that were invoked when the Law Reform Commission was established. The closure in 1993 occurred after the LRCC had more or less abandoned its original mandate and had taken on a role more in keeping with that typically performed by provincial law reform agencies. That of 2006, by contrast, was undertaken precisely because the LCC did not abandon its statutory mandate. This note explores the conceptions of law, of reform, and of commissions (institutional structure) through which public engagement with, and public participation in reimagining law have been pursued at the federal level. Rather than a lamentation for either the LRCC or the LCC it offers an optimistic assessment of the policy choices that a wise Parliament might well take up in its next iteration of the law reform idea.

This paper reviews the history of Bill 53, the Freedom of Informed Choice (Abortions) Act. A private member’s bill introduced in the Saskatchewan Legislative Assembly in 1985, Bill 53 would have imposed additional consent requirements on women seeking abortions. After concerns about its constitutionality were raised, the Bill was referred to the Saskatchewan Court of Appeal, which found it fell outside provincial jurisdiction. This paper explores the connection between Bill 53 and its more well-known cousins, Morgentaler and Borowski, and examines judicial and political decision-making in the early Charter era.

La politique actuelle de réconciliation qui guide les rapports que l’État canadien entretient avec les peuples autochtones affiche une certaine discontinuité en matière de reconnaissance de leurs droits religieux. D’une part, les gouvernements accordent aux Autochtones certains privilèges à des fins de valorisation de leurs particularismes religieux dans l’espace public, d’une manière qui ne s’étend pas nécessairement à d’autres segments de la société. Parallèlement, par l’entremise de lois et d’ententes politiques, des nations autochtones se sont vu reconnaître des droits et privilèges en lien avec leur sphère religieuse, lesquels demeurent toutefois largement assujettis au cadre normatif établi par la majorité. Enfin, les tribunaux peinent jusqu’à présent à considérer les particularismes religieux des nations autochtones en tant que motif décisionnel. Cette reconnaissance à géométrie variable laisse transparaître un relent de colonialisme suivant lequel la dimension symbolique est valorisée, au détriment des avenues susceptibles de mener à une réelle autonomie des nations autochtones en matière d’expression religieuse.