Volume
13 Number 1 2001
Articles
Women’s
Constitutional Activism in Australia and Canada
Marian Sawer and Jill Vickers
Connecting
Grounds of Discrimination to Real People’s Real Experiences
Dianne Pothier,
Evaluating
Criminal Justice Responses to Intimate Abuse through the Lens of Women’s
Needs
Joanne C. Minake
Cultural
(in)Sensitivity: The Dangers of a Simplistic Approach to Culture in
the Courtroom
Sonia N. Lawrence,
Commentaries
A Blueprint
for a Brighter Future: The Report of the Canadian
Human Rights Act Review Panel
Ira Parghi
Case
Comments
William
Black, Delays in the Human Rights Process:
The Blencoe Case
Book
Reviews
Pourquoi
en finir avec la féminisation linguistique ou à la recherche des mots
perdus. Par Louise-L. Larivière, Montréal, Boréal, 2000.
Louise Langevin
The
War against Boys: How Misguided Feminism Is Harming Our Young Men.
By Christina Hoff Sommers. New York: Simon and Schuster, 2000.
Robert Menzies
WOMEN,
WORK AND INEQUALITY: The Challenge of Equal Pay in a Deregulated Labour
Market. Edited by Jeanne Gregory, Rosemary Sales, and Ariane Hegewisch
(London, UK: MacMillan Press, 1999) and (New York: St. Martin’s
Press, 1999).
Rosemary Warskett
Articles
Women’s Constitutional Activism in Australia and
Canada
Marian Sawer and Jill Vickers
Constitutional
regimes have important impacts on women’s lives, but usually
women have had little say in their design. In this article we explore
women’s attempts to influence constitution-making at the federal
level in Australia and at the national level in Canada (including
Québec). In both countries women have tried to make space for their
own constitutional claims, taking advantage of the ‘unfinished’
nature of the federal compact. We map important differences—for
example, the greater degree of popular participation and women’s
intervention in the nineteenth-century process of Australian constitution-making.
Canadian constitutional politics have been less peaceful and more
intense because of the competing national claims that have also divided
the Canadian women’s movement. Rights discourse has been more
salient in Canadian constitutional politics than in Australia, and
has provided significant discursive opportunities for women—for
example, the mobilization over the Charter. By contrast, jurisdictional
issues have historically been more important to the Australian women’s
movement, including those surrounding family law, Aboriginal affairs,
childcare and women’s services. In Australia, the centralizing
impetus of distributional politics has not been matched to the same
degree as in Canada by a decentralizing politics of recognition. We
suggest in conclusion that federalism as a strategy to limit government
must be factored into feminist constitutional discourse.
Connecting
Grounds of Discrimination to Real People’s Real Experiences
Dianne Pothier
This
article concerns the role of grounds in discrimination analysis, both
statutory and constitutional. The author contends that, while a formalistic approach
to grounds is problematic, a more “complicated” approach
to grounds offers more insight than hindrance. The focus on why something
counts as a ground of discrimination should be a constant reminder
of why discrimination is, legislatively and/or constitutionally, prohibited.
Without a thorough understanding of the pertinent ground or grounds
of discrimination, the discrimination analysis will be inadequate.
Recent human rights cases involving gender and disability claims illustrate
that an understanding of the dynamics of grounds can strengthen a
relational understanding of discrimination. Recent constitutional
cases demonstrate that the real limitation on equality claims comes
not from the requirement of grounds, but from the “human dignity”
element of discrimination. Where the grounds requirement is glossed
over, a critical assessment of discrimination suffers. In contrast,
attention to grounds enhances the discrimination analysis. Part of
the necessary attention to grounds involves recognizing the significance
of the intersection of grounds, resisting the legal mindset that tends
to focus on a single ground and to fall into dangers of compartmentalization.
Intersecting grounds both complicate proof issues and mean that discrimination
can be happening in multiple directions simultaneously. The ultimate
point of a discrimination analysis is to be able to challenge dominant
norms. Close attention to the dynamics of grounds of discrimination
is necessary to challenge the dynamics of power relationships.
Evaluating Criminal Justice Responses to Intimate Abuse through the
Lens of Women’s Needs
Joanne C. Minaker
Strong
punitive measures and an aggressive criminal justice response have
been at the forefront of contemporary approaches to domestic violence
across Canada. If current justice policies in Canada are taken
as an indicator of the needs of women in abusive relationships, then
women are calling for a ‘get tough’ approach to domestic
violence, including amplified police surveillance, harsher punishments
for male abusers, and an extension of criminal law. Is this what female
victims of abuse are seeking? This article re-introduces women’s
needs as a significant component in the analysis of the successes
and/or failures of the criminal justice response to woman abuse. The
article is based on qualitative interviews conducted with women who
have been victimized by intimate violence and have called upon the
criminal justice system for assistance. My main objective was to learn
what the women identified their needs to be and whether, if at all,
the criminal justice system responded to those needs. The interview
data were used to analyze the extent to which, and the manner in which,
the criminal justice system responded to the needs they articulated
and then to consider whether the criminal justice system is structurally
capable of responding to these needs. A re-thinking of ‘women’s
needs’ and a clarification of the corresponding notion of ‘choice’
emerged from this analysis.
Cultural
(in)Sensitivity: The Dangers of a Simplistic Approach to Culture in
the Courtroom
Sonia N. Lawrence
This
article investigates how courtrooms and legal processes recognize,
react to, and thereby create ‘cultural’ information. Drawing
on contemporary Canadian examples and the US experience with ‘cultural
defences’ to criminal charges, the author considers not so much
how courts should react to cultural practices but rather the problems
with the way we identify these practices in the first place. This
‘identification’ process is often a form of cultural racism
and is sometimes masked as an effort at cultural sensitivity. Not
only is cultural information incompletely collected and imperfectly
understood, it also tends to be considered only against the unarticulated,
unexamined norm of North American mainstream culture. Legal institutions
produce distorted views of ‘Other’ cultures as well as an
intriguing shadow picture of mainstream culture—both of which
reveal a deeply held belief in the mainstream tradition’s superiority.
This process can be particularly harmful for women from non-mainstream
cultures. Not only does it construct their own cultural traditions
as being dangerously misogynist, it also refuses to recognize those
elements of mainstream culture that subordinate and endanger women.
The conclusion considers the range and complexity of the challenges
that judges, litigators, litigants, and communities face in trying
to avoid a simplistic approach to culture, stressing the need for
more careful approaches to cultural sensitivity training in judicial
education and litigation strategy.
Commentaries
A
Blueprint for a Brighter Future: The Report of the Canadian Human Rights Act Review Panel
Ira Parghi
This commentary reviews the recent
and potentially groundbreaking report of the Canadian Human
Rights Act (CHRA) Review Panel. This
report, entitled Promoting Equality: A New Vision,
offers the first systematic review of the CHRA since its enactment in 1977. The review panel presents a thoughtful and
forward-looking report on a number of issues relating to the CHRA, three of which this commentary considers. The first
topic is the review panel’s recommendation that the Canadian
Human Rights Commission (CHRC) place greater emphasis on investigating
and adjudicating systemic discrimination claims. This commentary explores
how it is that systemic adjudication stands to advance equality and
considers a number of the challenges systemic discrimination claims
raise. In order to derive the fullest possible benefit of this recommendation,
we must understand not only what it stands to achieve but also what
hurdles it must overcome. The second topic is the review panel’s
suggestion that the CHRC’s screening function be eliminated and
that all complainants be given direct access to CHRC tribunals. The
review panel considers direct access to be an optimal solution to
the numerous problems plaguing adjudication under the CHRA presently. This commentary also explores the alternative of bypassing
the CHRC altogether in favour of civil litigation. The third topic
is the review panel’s suggestion that social condition be added
to the CHRA as a prohibited ground of discrimination. This commentary
reviews the debate over this proposal and suggests that many of the
arguments both for and against it dramatically misunderstand what
it promises to accomplish.
Case Comments
Delays
in the Human Rights Process: The Blencoe Case
William Black
Delays
in the human rights process are pervasive in Canada. Blencoe v. British Columbia
(Human Rights Commission) considered whether these delays could be corrected by a litigative
strategy based on section 7 of the Canadian Charter of Rights and Freedoms or on the administrative law concept of abuse of process.
The decision of the Supreme Court of Canada suggests that such a strategy
is unlikely to succeed. The Court’s decision suggests that such
delays would violate section 7 only in rare and unusual circumstances.
The possibility that such delays would constitute an administrative
law abuse of process was accepted, but similarly stringent standards
were applied. Though this is a disappointment from the standpoint
of human rights reform, a strategy of reform through litigation may
have failed in any event because a significant source of delay may
be the statutory enforcement model used in most Canadian jurisdictions
rather than the ways in which human rights laws are administered.
Therefore, legislative reform may be a more promising avenue of reform
than litigation. The application of the Charter in this case—particularly
by the Court of Appeal—also raises more fundamental questions
about the way the framework of Charter analysis weighs the interests
of those individuals raising Charter challenges against the comparable
interests of others. For example, the complaints in this case concerned
sexual harassment, and the stay requested by Mr. Blencoe would have
deprived them of a remedy for a violation of their security of the
person. Perhaps the framework of analysis for section 1 should include
a new step at which such competing Charter interests would be considered.
Book Reviews
Pourquoi en finir avec la féminisation linguistique
ou à la recherche des mots perdus. Par Louise-L. Larivière, Montréal,
Boréal, 2000.
Louise Langevin
The
‘feminization’ of the French language has raised passionate
debate in the French-speaking world. In her book Pourquoi
en finir avec la féminisation linguistique ou à la recherche des mots
perdus (The Definitive Reason to End Debate on the Feminization of
Language or a Quest for Lost Words),
author Louise-L. Larivière takes a firm stand in favour of the feminization
of language. Though this slim book of about one hundred pages does
not provide new arguments in this area, it nonetheless reminds us
of all the work that still needs to be done with regard to the feminization
of legal discourse. Does the author really manage, as the title indicates,
to finally close debate on this subject? Surely not in the area of
law. This book is nonetheless useful as a practical tool that may
help to persuade recalcitrant women and men of the necessity of the
feminization of discourse.
The
War against Boys: How Misguided Feminism Is Harming Our Young Men. By Christina Hoff Sommers. New York:
Simon and Schuster, 2000.
Robert Menzies
In The War against Boys, Christina
Hoff Sommers laments the decline and fall of young men in the wake
of second-wave feminism. According to Sommers, a revolution in the
education system, executed by an army of gender-feminist ideologues,
ivory-tower organizations, and slick political lobbyists, has elevated
girls into their present status as a privileged gender elite. Boys,
conversely, have been marginalized in the classroom, are failing in
unprecedented numbers, and are being punished for simply being male.
Concocting an all-too-familiar farrago of backlash rhetoric, neo-conservative
philosophy, and socio-biological discourse, Sommers links the plight
of boys (and men) to wider currents of moral relativism, rampant collectivism,
compulsory egalitarianism, and political correctness, which allegedly
flow through contemporary society. In Sommers’s world, boys and
girls as well as men and women can find redemption only through moral
guidance, a re-embracing of family values, a righteous respect for
authority, a renewed commitment to discipline, a revisiting of conventional
education, and a revalorizing of traditional gender roles. Sommers’s
book should be read amid the small tsunami of anti-feminist and ‘men’s
rights’ writings that have inundated both academic and popular
contexts in recent years. Feminists need to take this work very seriously,
for it represents a powerful reactionary impetus aimed at reversing
hard-won progressive gains. The war over boys is, at its core, a struggle
over widely disparate visions of human rights, social justice, public
governance, and private life.
WOMEN,
WORK AND INEQUALITY: The Challenge of Equal Pay in a Deregulated Labour
Market. Edited by Jeanne Gregory, Rosemary Sales, and Ariane Hegewisch
(London, UK: MacMillan Press, 1999) and (New York: St. Martin’s
Press, 1999).
Rosemary Warskett
How are women
in the paid labour force faring in this period of ‘new internationalism’
that has resulted in restructured labour markets and work arrangements,
together with the intensification of precarious, low-paid employment?
In this collection of articles, the editors bring together the research
and views of feminists from three continents working in the disciplines
and practices of political economy, sociology, and industrial relations.
Overall, the book examines the effects of neo-liberal economic policies
on gender equality and unequal pay. The main contribution of this
book lies in its emphasis on practical strategies that take into consideration
intersections of race, class, and gender. Less successful on the editors’
part is the raising of important conceptual questions regarding the
equality approach and, therefore, how answers to these questions might
influence equal pay strategies.
