Volume
12 Number 2 2000
Articles
Nationalizing
Canadians: Bordering Immigrant Women in the Late Twentieth Century
Sunera Thobani
The
Paradoxes of Pay Equity: Reflections on the Law and the Market in
Bell Canada and the Public Service Alliance of Canada
Judy Fudge
The
Politics of the Breast
Barbara Arneil
Foetal Imaginings: Searching for a Vocabulary in the Law and Politics
of Reproduction
Jenny Morgan
Experts
and Ordinary Men: Locating R. v. Lavallée, Battered Woman Syndrome,
and the "New" Psychiatric Expertise on Women within Canadian
Legal History
Kimberley White-Mair
Commentaries
Comment
on the Report of the British Columbia Law Institute on Recognition
of Spousal and Family Status
Thomas G. Anderson
Case
Comments
Baker v.
Canada (Minister of Citizenship and Immigration)
Elizabeth Adjin-Tettey
Discrimination
Denied: Gould v. Yukon Order of Pioneers
Beverley Baines
New
Brunswick (Minister of Health and Community Services) v. G. (J): Constitutional
Requirements for Legal Representation in Child Protection Matters
Mary Jane Mossman
Book
Reviews
L'indemnisation
des victimes d'actes criminels : une analyse jurisprudentielle. Isabelle
Doyon, Christel Groux, Marie-Claire Lefebvre, Margaret Murray, sous
la direction de Katherine Lippel
Robert Tétrault
Incorporating
Difference into Feminism: Getting There from Here, Looking White People
in the Eye: Gender, Race, and Culture in Courtrooms and Classrooms.
By Sherene H. Razack
Patricia Hughes
Women,
Social Change, and the Politics of Power, A Taste of Power: A Black
Woman's Story. By Elaine Brown. The Politics of Pragmatism:
Women, Representation, and Constitutionalism in Canada. By Alexandra
Dobrowolsky
Rebecca Johnson
Editorial
This issue marks a new stage
in our history -- the Canadian Journal of Women and the Law's move
from the West Coast, where it was so well cared for, back east again,
this time to Toronto. For the first time, the University of Toronto
will house the Journal, and Denise Réaume takes over as the
English language co-editor. It was through the good offices of Mary
Jane Mossman that the University of Toronto was brought into the picture;
with the continuing support of our feminist friends at Osgoode Hall
Law School, we look forward to carrying on the vital mission of the
Journal for some years to come. At the same time, the French language
co-editorship has changed hands, passing from Josée Bouchard,
whose commitment to the Journal has been steadfast, to Louise Langevin
at Laval University.
Putting
out this first issue under the new regime has put us on a steep learning
curve, but it has been rewarding and stimulating. For answering all
of our panic stricken calls for help calmly and patiently, we are
most grateful to Susan Boyd, who has agreed to serve as transitional
co-editor until we settle into our new jobs, and Melinda Anderson,
who served as long-distance editorial assistant during the summer
and into the fall. Thanks are due also to Christine Boyle and Ruth
Buchanan for agreeing to continue as case comments editor and book
review editor, respectively, giving us further continuity through
this time of transition. As we accept the challenges ahead, we are
conscious of how much we owe to Josée Bouchard, Margot Young,
Hester Lessard, and Marlee Kline, for all their hard work as co-editors
over the last few years. We wish Marlee a full recovery from the illness
that forced her to relinquish the co-editorship and her position on
the Editorial Board.
This
issue was not planned around a deliberate theme, yet most of the articles
in some way speak to the fragility of feminist progress through law.
Even when the legal system delivers some good news for women, it is
rarely unequivocal or secure against backlash, misunderstanding, or
whittling down. Sunera Thobani demonstrates through her analysis of
the recent federal Immigration Policy Review that current thinking
in this area seems like a throwback to policies of a hundred years
ago. She sees in the review an effort to (re)construct the nation
as white, presenting immigrants from the South as a threat. Immigrant
women are most vulnerable to being treated as undeserving of full
inclusion in the Canadian state. Her essay is nicely complemented
by Elizabeth Adjin-Tettey's comment on the implications of the recent
Supreme Court decision in Baker v. Canada (Minister of Citizenship
and Immigration).
Judy
Fudge turns our attention to recent developments in the discrimination
law area, looking at two high-profile equal pay cases, and concludes
that even as more money was delivered into the pockets of these female
workers, structural forces in the economy are operating to put women
out of work and therefore beyond the help of pay equity legislation.
At the same time, the courts' intervention in these cases on behalf
of women's equality has not mitigated the attack on the legitimacy
of the pay equity enterprise. Barbara Arneil heralds two recent cases
upholding women's rights to expose their breasts in public for their
shift in perspective away from an exclusively sexualized view of the
female breast. However, despite the progressive outcome in R. v. Jacob,
she notes the flurry of activity designed to find another means of
either recriminalizing toplessness or otherwise regulating it. Drawing
on another case from the discrimination law realm, Arneil also worries
about whether the space that has been created for breastfeeding in
the workplace will be narrowed to the mere provision of breast-pumping
stations. Beverley Baines's comment on Gould v. Yukon Order of Pioneers
adds to the examination of discrimination law matters in this issue,
while on the legislative side, Tom Anderson assesses the recommendations
of the British Columbia Law Institute for omnibus legislation to remove
remaining traces of discrimination against unmarried and same-sex
couples.
The
decision in Dobson v. Dobson, which held that a child cannot sue his
or her mother for injuries suffered in the womb, is the starting point
for Jenny Morgan's reassessment of recent trends in the case law concerning
foetal rights. Usefully bringing together both civil and criminal
jurisprudence, Morgan applauds the outcome in the recent civil cases,
but finds wanting the underlying analysis of the relationship between
a woman and the foetus she carries. This lack of nuance makes the
approach less useful in confronting issues of criminal responsibility
for injuries inflicted on a foetus. We round out the articles in this
issue with Kimberley White-Mair's reconsideration of the recent case
law concerning battered wife syndrome in light of several much earlier
cases in which women were prosecuted for using force against abusive
men. The clearly problematic use of expert testimony and its suspect
ideological underpinnings in the older cases should put us on guard
against its more modern variants.
Adding
another dimension to the idea that progress for women is fragile,
Mary Jane Mossman's comment on New Brunswick (Minister of Health and
Community Services) v. G. (J) reminds us how tenuous is women's access
to justice in this era of legal aid cutbacks. Our book reviews feature
Robert Tétrault's review of L'indemnisation des victimes d'actes
criminels: une analyse jurisprudentielle by Katherine Lippel et al.;
Rebecca Johnson's review of Alexandra Dobrowolsky's The Politics of
Pragmatism and Elaine Brown's A Taste of Power: A Black Woman's Story;
and Patricia Hughes' review of Sherene Razack's Looking White People
in the Eye: Gender, Race, and Culture in Courtrooms and Classrooms.
The
year 2000 marks the fifteenth year of the Journal's operation. In
that time, it has grown to occupy an important niche in the legal
landscape. At this juncture in our history, we renew our commitment
to reflecting the bijural and bilingual character of Canadian legal
issues and the full diversity of women's perspectives and needs. We
look forward to playing our part in building on past strengths and
exploring new avenues for development.
Articles
Nationalizing
Canadians: Bordering Immigrant Women in the Late Twentieth Century
Sunera Thobani
In
1994, the Canadian state launched far-reaching Reviews of Social Security
Policy and Immigration Policy as part of the larger process of restructuring
the economy and welfare state. Through extensive public consultations
across the country, both reviews were mandated to recommend major
policy changes for the twenty-first century. Based on my participation
in both reviews, I describe the reviews and the public consultations,
which were their centre-piece, as being demonstrative of contemporary
ideological nation-building practices of the Canadian state, notwithstanding
the state's claims of commitment to democratic processes of consulting
with, and responding to, the concerns of its citizenry. Through the
production of texts to organize the reviews, and through the major
mobilization of public opinion (and that of participants), the state
sought to integrate Canadians-as-members-of-the-nation into supporting
the immanent restructuring. It did this by (re)constructing the nation
as white in the face of cultural, social, and linguistic 'outsiders'
who were said to desire what is rightly 'ours.' Even as it thus (re)defined
the ideological borders of the nation, it (re)produced the nation-state
relationship as a racialized one, in direct relation to future immigrants
from the South, who were presented as threatening to overwhelm the
nation's welfare and prosperity. This racialization/nationalization
of Canadians into a partnership with 'their' state was articulated,
in no small measure, through the bordering of future immigrants from
the South, and of women in particular, as a 'threat' while seamlessly
defining as synonymous the interests of both state and nation. The
reinforcement of the nation's borders simultaneously (re)constructed
people of colour within Canada as 'immigrant' outsiders, regardless
of their actual citizenship or legal status. Like future potential
immigrants from the third world, these 'immigrants' were represented
as beleaguering the nation on the basis of their cultural, social,
and linguistic diversity. It is on the basis of the racialized (re)construction
of the nation's borders and of the (re)racialization of the nation
state relationship that the Canadian state sought to legitimate itself
as representing the nation's interest with this restructuring during
a period when race, class, and gender polarization were increasing
in the country as, indeed, they were within the global economy.
The
Paradoxes of Pay Equity: Reflections on the Law and the Market in
Bell Canada and the Public Service Alliance of Canada
Judy Fudge,
This
article addresses the question of whether pay equity strategies work.
It uses a case study of two recent and very important equal-pay-for-work-of-equal-value
complaints brought under the Canada Human Rights Act to explore how
one example of pay equity works in practice. The long and convoluted
histories of the complaints brought by the Public Service Alliance
of Canada against the federal government and by the Communication
Energy and Paperworkers Union against Bell Canada indicates that the
answer to the question of whether pay equity works is a paradox. At
one level, in which equal-pay-for-work-of-equal-value settlements
were provided to tens of thousands of women employed by the federal
government, the law has been a success. At the level of providing
greater equity in the female-dominated sectors of the labour market,
the law's success is much more mixed. Moreover, pay equity's political
legitimacy, despite legal support, is under threat. The case study
illustrates why it is crucial to attend to the structural, as well
as to the institutional and the discursive, dimensions of law in order
to understand how the meaning and impact of pay equity changes.
The
Politics of the Breast
Barbara Arneil
Two
recent legal decisions in Canada (R. v. Jacob and Poirier v. British
Columbia) reflect an important shift in perspective on women's bodies
in general and female breasts in particular. Both decisions expanded
the legal scope of public exposure of women's breasts, by challenging
the standard public perception of women's breasts. While exposure
of breasts in public has almost always been constructed in a sexualized
manner, these cases embraced the notion that women's breasts may also
be viewed in non-sexual ways as well-a perspective that the two women
in the cases concerned took towards their own breasts. Thus, there
is a shift in the law and, more broadly, in our society from viewing
women's breasts exclusively from an outsider's (male, heterosexual)
perspective, and, thereby, with a single, sexual meaning, to one where
they are reconceived to incorporate the breast as a multi-purpose
organ. The enormous response to both of these decisions and the ensuing
debate demonstrates the degree to which there continues to be a political
battle over the control and meaning of women's breasts. The article
concludes with an analysis of the principle of 'accommodation' within
this context of shifting perspectives and points to some future questions
for analysis.
Foetal
Imaginings: Searching for a Vocabulary in the Law and Politics of
Reproduction
Jenny Morgan
The
article re-examines a series of decisions on "foetal rights"
from Canada, the United States, and the United Kingdom and seeks to
make connections between cases in both the civil and criminal realms.
Civil cases considered include the forced treatment of pregnant women,
attempts to confine a pregnant woman when the foetus she is carrying
is deemed to be at risk, and the recent decision of the Supreme Court
of Canada to refuse recovery to a child injured by the negligent driving
of its mother whilst in utero. While these cases have upheld the autonomy
claims of pregnant women, they have done so without articulating the
relationship between a woman and the foetus she is carrying and have
largely ignored the issues of equality in making their decisions.
The judgments offer little guidance to courts making decisions on
criminal liability where a person has injured a woman and killed the
foetus she is carrying and provide a fragile language to respond to
a cultural discourse that radically separates a woman and her foetus.
Some early work by the Women's Legal Education and Action Fund, in
describing the foetus as 'in and of' the woman that is carrying it,
is explored as it provides a useful terminology-one that places equality
as being central to judicial considerations of reproduction.
Experts and Ordinary Men: Locating R. v. Lavallée,
Battered Woman Syndrome, and the "New" Psychiatric Expertise
on Women within Canadian Legal History
Kimberley White-Mair
This
article examines historically the nature of medical "experience"
and the role of the expert witness in the trials of Canadian women
charged with killing their abusive male partners. I argue that we
can add conceptual depth to our reading of R. v. Lavallée and
other contemporary cases where battered wife syndrome (BWS) is raised
in a self-defence claim by looking to past practices of engaging medical
expert opinion evidence in the courtroom and the historical development
of psychiatric expertise in such cases. Within the context of Canadian
legal history, this analysis reveals how 'new' medical-legal innovations,
such as BWS, not only reinvent old theories about women's behaviour
but also perpetuate the artificial dichotomy between "expertise"
and "common sense." By turning the gaze inward and focusing
on the courtroom, this analysis highlights a number of the more subtle
legal processes that get in the way of correcting deep gender biases
in the practice and interpretation of Canadian law.
Commentaries
Comment
on the Report of the British Columbia Law Institute on Recognition
of Spousal and Family Status
Thomas G. Anderson
Canadian
legislation that fails to recognize the status of unmarried persons
of the same or opposite sex who are living in relationships resembling
marriage is at risk of being found to offend the Canadian Charter
of Rights and Freedoms or of being inconsistent with federal and provincial
human rights legislation. It is necessary, consequently, for Canadian
governments to revise statutes to remove unacceptable discrimination
between married and unmarried persons and between persons in same
sex and in opposite sex relationships. Recent examples of legislation
that do this can be found at the federal level (Bill C 23, Modernization
of Benefits and Obligations Act, 2000), in Québec (Bill 32,
Act to Amend Various Legislative Provisions Concerning de Facto Spouses,
1999), and in Ontario (Bill 5, An Act to Amend Certain Statutes Because
of the Supreme Court of Canada Decision in M. v. H., 1999). In response
to a request from the British Columbia government to determine changes
necessary to bring all BC legislation into step with earlier BC reforms
relating to the recognition of non-traditional relationships, the
British Columbia Law Institute (BCLI) recommended in November 1998
a model for omnibus legislation similar to that which has now formed
the federal, Québec, and Ontario pattern, in which a status
similar to marriage would arise between two persons of the same or
opposite sex, who live together in a relationship akin to marriage
for a defined period of time. However, the BCLI recommendations also
explore new areas including: (1) rationalizing statutes dealing with
informal parent/child relationships; (2) recognizing for many purposes
the family status of non-relatives who live together as family; and
(3) enacting legislation that would allow any two adults (subject
to certain restrictions) to make a "domestic partner declaration"
and be subject to the same rights and obligations that are attached
to married spouses.
Case
Comments
Baker v. Canada (Minister of Citizenship and Immigration)
Elizabeth Adjin-Tettey
The
Canadian Immigration Act requires that persons seeking to establish
permanent residence in Canada must obtain a visa before arriving at
a port of entry. The Minister of Citizenship and Immigration has discretionary
powers to exempt persons from this requirement for humanitarian and
compassionate reasons. Illegal de facto residents are one such group
who could benefit from this exemption. Often times, such persons would
have been established in Canada and have Canadian relatives. Whether
the best interests of Canadian children ought to be given primacy
in immigration proceedings that could result in the deportation of
their parents has been a vexing question in the administration of
the Immigration Act. Baker v. Canada (M.C.I.) seems to have put this
issue to rest by holding that a reasonable exercise of discretion
in this regard requires consideration of the rights, interests, and
needs of children in the determination of H and C applications of
their parents. The decision promises to protect the interests of Canadian-born
children while safeguarding against abuse of the immigration process.
Though the best interests of Canadian children must now be central
to the determination of applications on humanitarian and compassionate
grounds, it is unlikely that this fact alone can produce successful
outcomes for parents.
Discrimination
Denied: Gould v. Yukon Order of Pioneers
Beverley Baines
Gould
v. Yukon Order of Pioneers is the first human rights sex discrimination
case initiated by a woman and lost at the Supreme Court of Canada.
When the male, sex-segregated club, Yukon Order of Pioneers, denied
Ms. Gould's application for membership, the issue became one of measuring
the harm to her human dignity against the value of the club members'
fraternalism or male camaraderie. The author of this comment argues
that none of the eleven male judges who heard this case evinced any
empathy for Ms. Gould's claim, including failing to recognize its
implicit intersectionality (of sex and age). In addition, by caring
so much about the club's fraternalism or male camaraderie these male
judges failed to meet one of the basic tenets of the ethic of justice,
namely impartiality. The two dissenting judgements issued by the two
female justices on the Supreme Court of Canada were less cavalier
about meeting the requirements of the ethic of justice as well as
those of the ethic of care.
New
Brunswick (Minister of Health and Community Services) v. G. (J): Constitutional
Requirements for Legal Representation in Child Protection Matters
Mary Jane Mossman
This
note reviews the decisions in the trial and appellate courts in New
Brunswick, and in the Supreme Court of Canada, in relation to JG's
application for state-funded counsel to assist her when she was required
to participate as a respondent in child protection proceedings. The
note examines the reasons for the court's conclusion that the denial
of state-funded counsel violated JG's section 7 right to security
of the person. It also reviews the judges' approaches to the liberty
interest in section 7 and the equality guarantee in section 15. The
comment briefly addresses the implications of this decision in relation
to legal aid policy more generally, and its significance in relation
to goals of access to justice for women, particularly poor women.
Book
Reviews
L'indemnisation
des victimes d'actes criminels : une analyse jurisprudentielle. Isabelle
Doyon, Christel Groux, Marie-Claire Lefebvre, Margaret Murray, sous
la direction de Katherine Lippel
Robert Tétrault
The
Québec compensation system for victims of criminal acts is
not well known and only a small number of assaulted people, among
them women who are victims of violence, take advantage of their right
to compensation. In this perspective, the publication of a book aimed
at informing the public of the system and the difficulties inherent
in its implementation is certainly more than welcome. The book allows
us to note how several aspects of the actual regime are obsolete and
underlines the necessity for change. One can also hope for the implementation
of a system adapted to the particular reality of victims of criminal
acts, to replace a compensation regime borrowed largely from the area
of workers' compensation. Recommendations to this end took the form
of a bill which was sanctioned in 1993, but has never been enacted.
An analysis of this attempt at reform leads us to conclude also that
the bill itself included many aspects which were not favourable to
the victims.
Incorporating
Difference into Feminism: Getting There from Here, Looking White People
in the Eye: Gender, Race, and Culture in Courtrooms and Classrooms.
By Sherene H. Razack
Patricia Hughes
In
Looking White People in the Eye: Gender, Race and Culture in Courtrooms
and Classrooms, Sherene Razack addresses the failure of feminist theory
and of feminist lawyers, academics, educators, and adjudicators, as
well as non-feminist judges, to address difference. Razack explores
the hierarchical relations implicit in feminist theory and suggests
the means by which we can explore and redress our complicity in "relations
of ruling." This review places Looking White People in the Eye
at the centre of a discussion of the need for feminism to journey
from a "here" in which difference and hierarchical relations
are not sufficiently acknowledged by feminists to a "there"
in which difference is at the core of feminism. It concludes that
Razack's analysis is an integral part of the evolution of feminist
theory.
Women,
Social Change, and the Politics of Power, A Taste of Power: A Black
Woman's Story. By Elaine Brown. The Politics of Pragmatism: Women,
Representation, and Constitutionalism in Canada. By Alexandra Dobrowolsky
Rebecca Johnson
A
Taste of Power: A Black Woman's Story and The Politics of Pragmatism
are powerful resources for those individuals concerned with the intersection
of women, power, and law. Both authors share an engagement in activist
politics, and both books (using very different narrative strategies)
explore the relationship of power and politics. Elaine Brown does
so by closely following the history of one woman. Alexandra Dobrowolsky
does so by closely following a process-women's activism around social
change over an extended historical period. Brown's book provides a
compelling personal narrative against which to draw insights about
the complexity of power and change. Dobrowolsky's book provides a
way to link personal narratives with complex theoretical observations
drawn from a historical topography of Canadian women's constitutional
activism from the late 1970s to the early 1990s. Together, the two
books pose complex questions and suggest interesting answers about
pragmatic efforts to mobilize power in order to bring about social
and legal change.
