The purpose of this paper is to investigate the use of the term multiculturalism by Canadian justices. The goal is twofold. First, identify the context in which it has been used and delineate the meaning given to multiculturalism by Canadian Courts. Second, contrast the Federal State’s conception of multiculturalism with the courts’ implicit understanding. Although Canadian courts often refer to multiculturalism, their conception is much less unequivocal and its scope quickly widened, going beyond what had been planned at the time of its adoption in 1971.

The role played by ritual in the field of human rights has not been widely remarked or analysed. Here I argue that the triumph of human rights as the predominant language for making social justice claims in the international sphere is partly attributable to the power of certain linguistic and embodied rituals. I suggest that these rituals veil the material factors at stake when human rights are invoked internationally, obscuring the relationship between neoliberalism, material inequality, and human rights. I compare the vision of justice propounded through the rituals of human rights with that proposed by the peasants’ movement, Vía Campesina. Vía Campesina’s vision is grounded in material realities and confronts neoliberal policies head on. I consider how it unsettles the rituals of human rights, and whether it can be preserved in the form of a UN Declaration on the rights of peasants.

After a judge declared its parentage regime violated the Canadian Charter of Rights and Freedoms, in 2016, Ontario passed the All Families Are Equal Act (AFAEA), which recognized LGBTQ families and parents of children born through assisted reproduction. This article analyzes the legislative hearings on the AFAEA, and highlights three factors that shaped the final policy outcome: a coordinated group of progressive witnesses with legal expertise; the presence of “rights talk” to inflate the scope of the judicial ruling; and the government’s use of the Charter as both “shield” and “sword” to minimize conservative opposition. This highlights how the Charter can shape policy outcomes not just in the courtroom, but also during the lawmaking process. It also demonstrates that activists are now using the Charter—particularly the equality rights provisions—to change policy for two groups facing discrimination: trans parents and individuals using assisted reproduction.

Indigenous scholars and leaders have long been interested in reducing the role of the Canadian state in their political, economic, and social lives. This paper explores the extent to which digital currencies, such as Bitcoin or MazaCoin, might be used to facilitate Indigenous self-determination, political autonomy, and economic prosperity. Based on our review of the literature, we argue that cryptocurrencies demonstrate some potential for advancing these goals but that there are a number of potential roadblocks as well. Future research should investigate how Indigenous communities might use digital currencies and other related technologies to further their political, economic, and social goals.

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.

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.

The Divorce Act, 1968, provided no-fault divorce for the first time. It also included a list of fault-based grounds for divorce. In addition to the traditional grounds, a spouse whose wife or husband had “engaged in a homosexual act” during the marriage could petition for divorce. This novel provision was aimed at giving husbands a way to divorce their lesbian wives. A close reading of the resulting jurisprudence and surrounding context shows not only that courts struggled to define the homosexual act between women, but also that the legal history of lesbian women differs from that of gay men in a number of respects. Notably, male homosexuality was regulated primarily through criminal law. In contrast, when parliamentarians specifically addressed lesbians, they turned their minds to the family and family law.

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.

This article suggests a reconceptualization of the way in which social and legal sciences traditionally represented the relation between the judicial system and public opinion. Our analysis is based on Niklas Luhmann’s systems theory and on empirical examples taken from case laws and qualitative interviews demonstrating the heuristic potential of the polycontexturalisation of public opinion. In social and legal sciences, research has mainly focused on the public’s opinion of the judicial system. But the notion of polycontexturality here suggests a new approach which consists of analyzing the structures involved in the selection and judicial shaping of legally relevant public opinions. The goal then is no longer to understand what public opinion thinks of the judiciary but rather to understand what the judiciary believes public opinion thinks of it.

In restorative justice theory, the concept of “community” looms large, since it is the locus of the very restoration to which this form of justice aspires. The questions that then raise themselves are: what is this “community” and how is this community rebuilt through the more relational and dialogical process of restorative justice? In investigating one restorative justice panel program in the United States, it becomes clear that “community” means different things to different individuals. Questioning the possibility of a locally-sanctioned version of justice, this study suggests that the starting point of including “community” in restorative justice should be re-thought.

The death of Ashley Smith represents the first time in Canadian legal history that correctional officers were criminally charged in the death of a prisoner under the care of the state. In response to these unprecedented charges, the Union of Canadian Correctional Officers (UCCO) mounted a highly public campaign in defense of the officers. In this article, I review UCCO’s media statements following Smith’s death, submissions to various government review committees, and the current Global Agreement between UCCO and Correctional Service Canada (CSC) regarding federally sentenced women. I suggest these narratives work to reproduce administrative segregation as necessary to manage “troubled young women” who are constituted as an unsafe working condition for officers. I highlight the failure of UCCO to influence government policy, unlike the effective success of unions in the United States, and I challenge the place of UCCO in Canada’s trade union movement.

During the 2015 Maclean’s election debate, Stephen Harper commented, “we have more private member’s legislation that has gone through Parliament under this government than multiple governments before us.” This statement is borne out by empirical evidence: more private member’s bills (PMBs) have become law during Harper’s time in government, compared with most previous parliaments. However, PMBs are subject to less analysis than government bills and do not receive legal scrutiny by the Department of Justice, potentially implicating the protection of rights. Moreover, while one might assume that PMBs concern innocuous local and/or specialized interests, many Harper era PMBs effect substantive legal change to national issues like criminal justice policy. This paper examines the law and order trend in PMBs and addresses the following: why would the PMO under Stephen Harper, noted for its centralized control over all aspects of public policy, permit backbench MPs a role in criminal justice policy, through PMBs?

Ashley Smith lived and died at a confluence of legal sanctions and correctional policy, norms, decisions, and indifference. This article approaches her incarceration primarily through a particular articulation of legal pluralism. Martha-Marie Kleinhans and Roderick A. Macdonald argue legal subjects should be understood as creating law in relationship with laws/norms. The Correctional Service of Canada (CSC) treated Smith as an excluded legal subject through practices of isolation, but the correctional norms evolving in relationship with her resultant distress simultaneously indicate CSC treated Smith as if she were effectively a law-producer, capable of changing policy. However, treating her as a source of norm-creation assumes equality/power Smith did not have. The story leading to Smith’s death in custody illustrates two primary themes regarding the production of law/norms. First, the legal subject within a critical legal pluralism should be widened to encompass those who act within/against (and are acted upon by) legal/normative systems characterized by extreme power disparities. Drawing on Martha Fineman’s vulnerability analysis, I argue such legal subjects should be understood/treated as vulnerable, implicating an enlarged role for institutions. Second, I follow the broad dictates of a critical legal pluralism to demonstrate how the reciprocally constitutive (though unequal) relationship between the legal subject and legal/normative orders manifested in Smith’s incarceration and attendant changes to correctional norms.

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.

This article explains why and how some Canadians have asserted a right to possess firearms from the late nineteenth century to the early twenty-first century. It demonstrates that several late-nineteenth-century politicians asserted a right to arms for self-defence purposes based on the English Bill of Rights. This “right” was forgotten until opponents of gun control dusted it off in the late twentieth century. Firearm owners began to assert such a right based upon the English Bill of Rights, William Blackstone, and the English common law. Their claims remained judicially untested until recent cases finally undermined such arguments.

This reflection on the social construction of authenticity analogizes the quest for artistic authenticity to snark hunting. To illustrate the instability of this term, it employs various Canadian examples, including the “Michelangelo” terracotta sculptures donated to the Museum of Vancouver, the “Igloo tag,” the importation of a sculpture by Edward Chukwuweike Madukaego, and the work of Bill Reid. It posits that proclamations of authenticity and fraudulence are ultimately utterances denoting and invoking power relations. It also reveals, through the use of specific examples, how negotiations around artistic authenticity in settler societies can replicate and re-entrench colonialist power.

Nineteen-year-old Ashley Smith died by her own hand in 2007 in a women’s correctional facility in Ontario, Canada. The subject of the coroner’s inquest into her death was her carceral experience and the failure of the system (leading to her death) during her time in adult federal corrections. The general focus of the inquest was on the state of federal women’s corrections in Canada and the mental health issues experienced by many incarcerated women. We produced a report and provided expert testimony at the inquest regarding the need for a developmentally informed correctional framework. In this article, which is based on our inquest report and testimony, we argue that a developmental perspective is a vital lens for understanding the incarceration experience of young women.

This article offers a narrative analysis of the two CBC Fifth Estate investigative documentaries about Ashley Smith (“Behind the Wall,” 2010; “Out of Control,” 2010) and juxtaposes the documentary narratives against claims made by feminist criminologists with respect to women’s corrections. Examining the coherent ‘through narrative’ that is constructed in each documentary, we claim that The Fifth Estate uses dominant medicalized conceptualizations of mental illness and mental health treatment to frame the Smith case, leaving questions about the gendered nature of her criminalization, imprisonment and mistreatment unasked. Considering the socio-political context of neoliberal and post-feminist individualism, we argue that The Fifth Estate presents the case in a way that maintains the status quo and may resonate with their national audience, but which also reinforces the pathologization of women prisoners and upholds gendered stereotypes.