The relationship between criminal law and morality is one which has always evoked strong feelings. Moreover, the question of whether and how to use criminal law sanctions to curb sexual immorality has been particularly susceptible to both outbursts of moral fervour in the community at large and to the pressure exercised by crusaders and propagandists with moral missions.

The concept of community has a new importance for legal theory and legal sociology. It allows an escape from traditional conceptions of the relationship between law, state and political society. It makes possible the development of a pluralistic view of law that realistically recognises powerful globalising and localising pressures shaping contemporary law. Community is best thought of initially in terms of four ideal types of collective involvement, derived from Weber's types of social action. These imply different kinds of trusting relationships and different regulatory needs. A sense of attachment and a degree of stability in relationships is also necessary to community. Actual groups combine relationships of community in many different ways. Law's contemporary task is to express and coordinate the regulatory needs surrounding structures of community within and beyond the nation state.

This article develops research strategies designed to access and record the narratives of women within a plural marriage society, with a view to enhancing legal and popular knowledge about polygamy in Canada. It achieves this end through reliance on scholarship that explores methods for conducting reflexive research from a feminist viewpoint. Two particular research strategies explored in the feminist scholarship are considered here with particular reference to Bountiful, British Columbia, a community where plural marriage is openly practised. These strategies require the researcher to (1) hear and give credence to the narratives of women regarding their experiences as polygamous wives; and (2) engage in critical self-reflection about her own cultural and normative reference points and assumptions. These strategies are relied on here to formulate a distinctly juridical inquiry that rejects any presumed preference of state over cultural “law” while at the same rigorously testing claims about gender and tradition grounded in cultural norms. Applying this inquiry to the study of polygamy in Bountiful should serve to enrich our understanding of how women are affected by plural marriage, and by law's response to this practice, in this distinct place.

The Ottawa Needle Hunter Program was developed to clean up after the City of Ottawa's needle exchange. Needle hunters themselves are sometimes street involved and/or former intravenous drug users. Whereas harm reduction attempts to diminish overtly moralizing problematization of drug users, with awareness of wayward needles in urban areas the syringe is re-moralized, creating a moral terrain inhospitable to harm reduction. Needle hunting is not exactly harm reduction but, rather, a form of entrepreneurialism that harm-reduction programs must take on to manage their public reputation in unreceptive moral terrains. This study shows how the more entrepreneurial dimensions of harm reduction materialize at two levels: the needle-hunting project coordinator is made to govern possible risks on behalf of her needle-hunting workers, and the needle hunters become responsible for governing wayward needles. To conceptualize the work locations and knowledge networks involved in needle hunting, I draw from writings on nodal governance. Nodal governance scholars focus on a plurality of regulatory agencies, of which “the state” is only one, but often assume a levelling of hierarchy among these agencies. Supplementing the nodal governance approach through more attention to hierarchy within and among work nodes, as well as through attention to the role of objects in governance processes, I inquire into the risk-knowledge networks that draw together agencies that account for and collect used needles around Ottawa, Canada.

In this paper, I argue that Indian Residential School (IRS) litigation, and the emphasis on “cultural loss” or genocide, threatened to expose the illegitimacy of Canada’s claim to sovereignty and the settler collective’s occupancy of Indigenous lands today. When settler illegitimacy is brought into view, settler collectives typically respond with violence. In IRS case law, this violence consists of the dehumanization of the Indigenous collective as property. I trace this violence on the part of Canada (government and law) in Blackwater v Plint (1996–2005). I suggest that Canada’s “disturbing defence strategy” in Blackwater likely contributed to Canada’s signing of the 2006–2007 IRS settlement agreement that brought Baxter v Canada to a close. I conclude that settler illegitimacy, genocide, and law’s racialized violence in the present ought to trouble the settler collective’s vision of both decolonization and the role of settler law in decolonization.

This article examines Canada's federal Live-in Caregiver Program (LCP) from the perspective of international human-rights and labour norms pertaining to the protection of migrant workers. Showing that the current legal framework of the LCP restricts migrant caregivers from effectively exercising a range of human and labour rights, the author argues for the removal of the labour (im)migration program's unnecessary structural obstacles and proposes a reformulation of the LCP under the principles and guidelines of the International Labour Organization's Multilateral Framework on Labour Migration, in order to transform this controversial labour policy into a decent work opportunity.

This article examines how EU rights and laws serve as legal opportunity structures for women’s rights activists in Europe. Further, it examines what effects this transnational activism has on the permanence and inclusion of public interests and gender equality in EU legal and political processes. The analysis examines the legal domain of EU women’s rights over a thirty-year period. Methodologically, the study relies on case law analysis, primary document collections, and interviews with non-governmental organizations and governmental elites at both the EU and the national level. I ask how legal mobilization can serve as a catalyst for institutional change (by influencing litigation and legislative action), and how this effects subsequent EU-level women’s rights mobilization and public inclusion.

This paper analyzes the processing of complaints against lawyers through the Law Society of British Columbia's disciplinary system between 1989 and 2000. It also examines changes to the context within which the disciplinary system operates, between the time period of an earlier study (1978–1988) and this study. Cases processed by the disciplinary system are discussed in light of a model that examines the process from the perspective of how cases are brought into the system (funnel in), and reduced in number by the disciplinary system (funnel out). Finally, the future of self-regulation is assessed in light of some of the renegotiations and readjustments to professional self-regulation that have taken place elsewhere.

The 1983 case Racine v Woods is the leading child protection case from the Supreme Court of Canada, distinguishing bonding and/or attachment as a more important determinant of best interest for an Indigenous child than cultural connection. Using this case, courts are upholding the permanent placement of Indigenous children in non-Indigenous homes as opposed to placement within their culture. Racine v Woods reflected knowledge of attachment and family at that time but runs counter to current knowledge. Reconsideration of the factors to decide cross-cultural adoption is needed. The essential point is that attachment assessment draws from a dyadic relational theory and is being applied to communal family systems, such as Indigenous systems. Such a review is consistent with the calls to action of the Truth and Reconciliation Commission (TRC) as well as its predecessor, the Royal Commission on Aboriginal Peoples (RCAP), and recent Canadian Human Rights Tribunal (CHRT) decisions.

Transitional justice seeks to address legacies of violence around political transition from authoritarianism and armed conflict. It does so in ways driven by a global discourse that is prescriptive and often remote from the contexts in which it is articulated and the populations it claims to serve. Transitional justice is also embedded in teleological liberal approaches to transition, with a perceived endpoint of liberal democracy. Critical approaches to transitional justice have used qualitative methodologies to understand the agendas of those—notably victims of violence—that transitional justice foregrounds, and to demonstrate that transitional justice mechanisms often serve elite agendas, while minimizing the agency of socially excluded populations. An alternative, minimally explored route to victim engagement with such processes has been the mobilization of victims and victim organizations, an emancipatory approach that seeks to provide a space for victims to engage in transitional justice debates on their own terms. Here, a research engagement with a victims’ organization through a Participatory Action Research modality is described in which researchers support victim engagement in peer research to catalyze a social movement of victims in post-conflict Nepal.

This article examines the values ascribed to the lives of non-citizens by the Immigration and Refugee Protection Act's security certificate process and its implications for state power and political freedom. Under the imperative of national security and the “war on terror,” the security certificate functions as a moment of legal exception for the assertion of sovereign power and legitimation. This compromises the rule of law and denies basic legal protection to non-citizen detainees. The first section of the article addresses the mechanisms and procedures of the security certificate. Special attention is paid to the use of detention and evidentiary standards in order to illustrate the manner in which the security certificate derogates the rule of law. The second section considers how eroding the rule of law opens a space of exception for the exercise of sovereign, unmitigated state power that is grounded in the discriminatory criteria of citizenship status so as to implicate foreignness in the production of danger. The final section addresses how the security certificate configures freedom as commensurate with the national security objectives of the “war on terror”, exposing the limitations of liberal freedom in relation to modern state power.

This article reports on three studies aimed at identifying ways in which seemingly neutral legislation may lead to discriminatory results. Three facets of workers' compensation legislation in Québec were examined in order to determine whether their application to injured women workers is equitable. The first study analysed 179 appeal decisions regarding claims for psychological disability relating to workplace stress. Results show that accessing compensation was more difficult for women than for men. Disparity in access could not be explained by individual differences. Discrimination operated by differential interpretations by decision makers of broad criteria (unusual stress) developed in the case law itself. The second study looked at legislative and administrative rules regarding compensation for inability to perform unpaid domestic work as a result of a compensable workplace injury. Differential obligations in the home conjugated with inadequate legislative programmes regarding domestic work led to under-compensation of women workers for the real economic consequences of their work injury. Thirdly preliminary results of a study of appeal decisions and policy regarding professional rehabilitation of injured workers are presented. Systemic discrimination is illustrated by the fact that pre-injury earnings are determinant in access to programmes and duration of rehabilitation benefits. Conjugated with systemic undervaluing of women's work, this leads to poorer access to appropriate rehabilitation programmes.

This essay argues for a practice of comparative legal scholarship emerging from the insight of legal pluralists. If everyday life is a normative order (or a constellation of normative orders), it can be compared to other, less transient normative orders. Continuity, discontinuity, shared and divergent characteristics can then be identified. The language and features of one can be used to understand the other. Through cultural translation, “microlegal” and macrolegal systems can become the object of studies in comparative law. The argument proceeds in three steps. In the first part, drawing from the work of Michael Reisman, the conceptual apparatus of official law is enlisted to present the mundane encounter as a space of interaction subject to “legal” ordering. The second part begins from the other end — it points to the uses of everyday life as allegory for fundamental problems of macrolegal ordering, as illustrated in the work of Roderick Macdonald. In the final part, the two strands are brought together in a comparison of the features of microlegal encounters, on the one hand, and large scale contractual relationships described by Jean-Guy Belley, on the other hand. Architectural continuity is manifested in the fact that similar tensions or polarities are part of the structure of normative orders at each layer, from the brief encounter to the formal, institutionalized, and large-scale examples of human interaction.

While Canada has long criminalized aspects of sex work, the specific act of purchasing sexual services was not against the law per se. In 2014, however, the then Conservative government implemented new legislation targeting sex work clients. Given the criminalization and persistent stigmatization of their activities, assessing clients’ changing actions, perceptions, and knowledge of the new legislation is challenging. We thus turned to a major Canadian online sex work review forum to examine postings on forum threads. This paper examines the risk knowledge practices in which clients engage as they try to make sense of the modified legal regime and avoid new legal risks. Our findings illuminate clients’ varied understandings of their own criminalization.

Ghana joined a group of transitional democracies in the world by establishing a National Reconciliation Commission (NRC), which started work in September 2002. The NRC was mandated to investigate past atrocities and human rights violations, recommend appropriate compensation for victims, and reconcile the nation. But expectations among Ghanaians of the ability of the NRC to heal the wounds of the past, end the cycle of vengeance and vendettas, and reconcile the nation have been mixed even after the NRC completed its work and submitted its report in October 2004. This paper makes a case for Ghana's NRC. It argues that a National Reconciliation Commission is a better way of dealing with the egregious human rights violations in Ghana's past than the alternatives available.

In Canada the entrenchment of the Charter of Rights and Freedoms generated a good deal of debate about the possibility of using law in the struggle for social transformation. Although couched in general terms, the current debate is ultimately about the possibility of asserting liberal democratic legal rights in courts in order to transform existing relations of subordination and domination. Somewhat remarkably, the positive claim that litigating entrenched legal rights encourages social transformation tends to be made almost exclusively at the theoretical level. Theoretical possibilities, rather than concrete victories, are invoked to support the claim for the transformative capacity of liberal legal rights. Instead of approaching the question of litigating social change from an exclusively theoretical perspective, this paper examines contemporary examples in order to illustrate some of the possibilities of and limits to this strategy. Specifically, the paper examines how both the labour and women's movements have used the Canadian Charter of Rights and Freedoms to further their social, political and economic goals. Not only did these two groups adopt widely different strategies during the entrenchment process, what is entailed by the assertion of bourgeois legal rights has a different meaning for each. Thus, by contrasting the experience of the labour and women's movements in invoking the Charter it is possible to begin to suggest the limits of liberal rights in the struggle for social transformation.

The issue of customary law punishment, especially “payback”, has stretched the limits of the criminal law in a range of sentencing judgements in Australia's Northern Territory. A number of judgments relating to customary law punishment are discussed in this essay. Successive Australian judicial decisions have stated that Aboriginal criminal law did not endure beyond British settlement. However, the jurisprudence of the Northern Territory does not quite reflect this position. The response of the judiciary in the Northern Territory to customary punishments has been to develop a kind of soft legal pluralism. Judges both take into account the proposed punishment, and yet do not formally condone it. The judiciary has attempted to maintain control over customary punishment while being beholden to Aboriginal communities for evidence of appropriate customary responses, and for the carrying out of the promised punishments. This leads to a complex situation where Aboriginal people are both supervised and supervisor, and the state is both in and out of control.

Recent governmentality literature distinguishes between government from above and government “from below” in an attempt to avoid “top-down” analyzes of state-centered government and to acknowledge the multiple and diverse ways in which the governance is achieved. By analyzing key shifts and changes in the regulation of prostitution in the UK in the last three decades, it is possible to complicate the distinction between the two modes of government. Whilst some writers highlight the ways in which government from above and below become increasingly blurred, this article argues that although the agendas and modes of government from above and below are difficult to disentangle, the effects on sex workers are not. Regulation remains rooted within coercive and punitive state-centered criminal justice responses, even though organizations “from below” may well be the very organizations tasked by the state with carried out those responses.

In 2005, Canada implemented its first-ever domestic human trafficking legislation under sections 279.01 through 279.04 of the Criminal Code of Canada. The first conviction under this legislation came about three years after its implementation, with a total of only five convictions having been obtained as of January of 2011. This article examines the legislation and the legislative definition of human trafficking in Canada, arguing that the vagueness of this legislation, the breadth of the legislative definition, and its similarity to other provisions within the Criminal Code make it difficult to distinguish human trafficking from other criminal offences, particularly procurement, or in lay language—pimping, which is governed under section 212 of the Code. Analyzing cases identified as human trafficking by Canadian police and legal authorities, this article demonstrates the problematic effects of Canada’s human trafficking legislation. The article points out the challenges arising from identifying non-trafficking cases as human trafficking, including undermining the severity of human trafficking and impeding efforts to combat it.