Category Archives: What we’re thinking/reading/doing (IFLS blog)

What’s interesting these days?

Community, connections, commitment: Conversations at Osgoode

 

This semester we are bringing some of the people who do front line work with gender issues in Toronto to Osgoode.   Join us for these discussions about work, careers, challenges and choices (each with one lawyer and one “non lawyer”) – we will leave plenty of time for your questions.  Tuesday Jan 21 and Tues Feb 4, 1230-230.

Tuesday January 21 1230-230 in 2027

Farrah Khan & Deepa Mattoo

Hear Deepa Mattoo (staff lawyer at South Asian Legal Clinic of Ontario) & Farrah Khan (counselor at the Barbra Schlifer Clinic for women who have experienced violence, artist, and educator) talk about their work with women in the GTA’s South Asian communities, advocacy inside and outside the community, research, media strategies, and negotiating complicated spaces between xenophobic racism and community silencing. How did these women find their way to exciting and meaningful careers? What sustains them in their work? Come & find out.

pdf poster here: KhanMattoo21jan

 

KhanMattoo21jan

 

 

Tuesday February 4th 1230-230 in 2027, join IFLS

Tamar Witelson & Joanna Hayes

Legal Director Tamar Witelson & Legal Information Coordinator Joanna Hayes work for one of Toronto’s most dynamic and community engaged agencies. METRAC is a non-profit committed to the rights of women and children to live their lives free of violence and the threat of violence. They will discuss the work METRAC does, how they work together, their career paths, and what working in the not-for-profit sector is like.

PDF poster here:  METRAC4thFeb

 

METRAC4thFeb

 

 

on Bedford (four things)

pic of bike helmet

Having spent the day mulling it over, I‘m haven’t fully decided about Bedford. I do consider it a victory on the facts and for this cause.  I mean that I haven’t decided on the map the court used to get there – what does it mean for the future on this issue and the ones that will follow.  Below are a list of four things that I think we should be thinking about – followed preceded by a very small round up of links.

I haven’t done an overview here. I can’t even begin (for reasons of time but also volume) to collect all the commentary that has come out today.  But I will say that along with the commentary – including law profs Brenda Cossman , Angela Campbell and  Michael Plaxton in the Globe, Carissima Mathen in the Ottawa Citizen, PIVOT’s summary (PIVOT is a Vancouver social change legal organization which intervened on the case against the government) NWAC’s press release (Native Women’s Association of Canada, who intervened against striking down the challenged laws), mentions of Canada in US law blawgs (here, from Canada-phile @robsonconlaw) and @cmathen’s twitter feed all day long –   you should read the decision.  It is not a monster. It is, as these things go, a model of clarity and guidance (with caveat below).  Find it here.

1.  Suspension

The last three paragraphs of the case (full text here) might be the most troubling.  Having accepted and described the harms that these laws cause – having raised the spectre of Pickton in that analysis – the Court via the Chief sets up the opposite side.  That is, a “concerned public”.   She does not, here, describe precisely what those “many Canadians” would be greatly concerned about.  But it is enough to justify “increased risk” to prostitutes [para 168], apparently because although “neither alternative is without difficulty”, the declaration of invalidity is suspended. [169]

Alright, @cmathen, you are correct of course.  My point is not so much that the Court should not have done this – but rather let’s talk about what is really going on in that three sentence paragraph 169.  Why take this approach?  Is this pragmatism?  I see no one on social media or in op eds raising the thought of section 33 (the override).  The “dialogue” that a suspended declaration is usually said to create is one way of mitigating claims about activist courts usurping the role of the legislature.  It is useful to think more about the extra-doctrinal reasoning, the reasons not provided, because clearly there is something wrong with the doctrinal logic of this suspension.

2.  Choice

My favourite trope in Charter cases: Choice!  And here we see the court taking on facile arguments about choice in wonderful ways [para 79 through 92].   The AG’s (Ontario and Canada) take a bit of a beating for their positions about the causal connection between the law and the harms the court is recognizing.

[79]     The Attorneys General of Canada and Ontario argue that prostitutes choose to engage in an inherently risky activity.  They can avoid both the risk inherent in prostitution and any increased risk that the laws impose simply by choosing not to engage in this activity.  They say that choice — and not the law — is the real cause of their injury.

Paragraph 86 represents a relatively complete picture of the complexity of choice and sex work.  It is, in many ways, this picture which makes debates over sex work so fraught within feminist communities.  Some choose it – others cannot be said to do so.

[86]                          …., while some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so.  Ms. Bedford herself stated that she initially prostituted herself “to make enough money to at least feed myself” (cross-examination of Ms. Bedford, J.A.R., vol. 2, at p. 92). As the application judge found, street prostitutes, with some exceptions, are a particularly marginalized population (paras. 458 and 472).  Whether because of financial desperation, drug addictions, mental illness, or compulsion from pimps, they often have little choice but to sell their bodies for money.  Realistically, while they may retain some minimal power of choice — what the Attorney General of Canada called “constrained choice”  (transcript, at p. 22) — these are not people who can be said to be truly “choosing” a risky line of business (see PHS, at paras. 97-101).

Here is another piece of the fraught feminism around choice and sex work, referenced in para 87, which also contains the greatest SCC analogy (another of my hot button issues!) of all time or at least of 2013:

[87]                          Second, even accepting that there are those who freely choose to engage in prostitution, it must be remembered that prostitution — the exchange of sex for money — is not illegal.  The causal question is whether the impugned laws make this lawful activity more dangerous.  An analogy could be drawn to a law preventing a cyclist from wearing a helmet.  That the cyclist chooses to ride her bike does not diminish the causal role of the law in making that activity riskier.  The challenged laws relating to prostitution are no different.

Actually, there is of course another piece of the choice puzzle, and that’s the choice and role not of the seller but the buyer – but that was not at issue in this case. It will, of course, be unavoidable in the debate over what to do next.

My interest in choice goes beyond this case. It’s been a discourse that the Court has used in a number of cases to sink section 15 challenges.  Seeing it taken on so clearly here – treated as a complex issue – is a relief.

3.  Appointments & Mr. Harper

I can’t make this point any more clear than Osgoode student Avnish Nanda did via twitter:

That’s not the whole story – but it’s a big part of it.  We’re not at defcon 5 (Bush v. Gore style) yet with this Court, not even close.

To have a unanimous decision like this will make consensus builder McLachlin C.J. happy.  But this doesn’t look like a  “split the difference, everyone gets something” consensus, unless you see the suspension as the split difference.   This looks like a clear message to Parliament about lines and limits.

4. Stare Decisis & Deference to  Trial Judges on Social & Legislative Facts

There is much to be said about what happens starting at para 38, as we examine whether conclusions in earlier cases can be “revisited” [41] or “departed from” [39] (hmmm, not “overruled”?).  It’s a sign, perhaps, that we’ve had the Charter a while now that the Court now must say both:

[38]  Certainty in the law requires that courts follow and apply authoritative precedents. Indeed, this is the foundational principle upon which the common law relies.

and

[42] ….Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.

Likewise, the CJC notes that the SCC’s position on deference to the Trial Judge on social and legislative facts (starts at para 48) has shifted as we entered the Charter era:

[53]  As the Attorney General of Canada points out, this Court’s decision in RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, suggested that legislative fact findings are owed less deference.  However, the use of social science evidence in Charter litigation has evolved significantly since RJR-MacDonald was decided.  In the intervening years, this Court has expressed a preference for social science evidence to be presented through an expert witness (R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571, at paras. 26-28; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 68).  The assessment of expert evidence relies heavily on the trial judge (R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at paras. 62-96).  This is particularly so in the wake of the Ontario report by Justice Goudge, which emphasized the role of the trial judge in preventing miscarriages of justice flowing from flawed expert evidence (Inquiry into Pediatric Forensic Pathology in Ontario: Report, vol. 3, Policy and Recommendations (2008)).  The distinction between adjudicative and legislative facts can no longer justify gradations of deference.

This makes me think about the incredible burden that many critical cases place on litigants and lawyers.  There was voluminous evidence in this case – bravo to the lawyers and others who put this all together, and to the Trial Judge (a former Deputy AG Ontario, Justice Susan Himel) who wrote a decision that could stand up to all the scrutiny, that carefully detailed how she weighed the evidence.  Have a look at a case like Inglis v. British Columbia (Minister of Public Safety), 2013 BCSC 2309 – again, a long decision, significant evidence, written by a judge no stranger to this kind of evidence (I understand Justice Carol Ross has a background in sociology – she also wrote the original decision in Victoria v. Adams 2008 BCSC 1363).  Consider the 1416 paragraph BCSC decision in Carter, the right to die case) by Justice Lynn Smith (hmmm, lots of women judges here).  At any rate, these aren’t cases that walk into your office one day.  They are cases put together piece by painstaking piece.  It’s a long road to justice this way around, folks.

 


 

The last thing I need to think about, of course, is  – is there a way that the doctrines created here will be applied that I need to start worrying about?  At this point, I’m just anticipating the next ten years as a slow retreat from this high water mark of rights-protection.  I’m a bit of a pessimist.

 

I’m not, here, really writing about the substance of the case.  I do completely agree with the basic theory as captured by the helmet analogy (see bottom of this post).  And like many others, I was struck by the fierce language the CJC uses to illustrate the very real harm done by these laws, by the references to Grandma’s House (para 64, and especially 136 “A law that prevents street prostitutes from resorting to a safe haven such as Grandma’s House while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose”) by the assertion that the ability to “screen” through direct communication is relevant if the practice “could have prevented one woman from jumping into Robert Pickton’s car” (para 158).    I admit that during this case, I was sometimes made uncomfortable by the variety of things which were being asserted through reference to the desperate and deadly situation in Vancouver’s DTES during the time Pickton was murdering women he picked up there.  I heard these arguments made in ways that seemed to me sensationalized – almost exploitative, and I felt uncomfortable with them – but I also heard them made with despair and rage.  In this judgment, I see these arguments accepted because of the way that the women who died at Pickton’s hand are women who might have been saved but for these laws – women with rights, women whose chances to save themselves mattered then, and now.  That’s something.

 

 

An analogy could be drawn to a law preventing a cyclist from wearing a helmet.  That the cyclist chooses to ride her bike does not diminish the causal role of the law in making that activity riskier.  The challenged laws relating to prostitution are no different. [para87]

Reading list / twitter roundup

applejack with lasso

1. Inglis v. BC Minister of Public Safety (trial level successful demand for mother/baby in women’s prison to be reinstated on Charter grounds)

2. Homicide verdict from inquest jurors (5 women who performed this service for 8  months) in the death-while-incarcerated of 19 year old Ashley Smith.

3. Bedford.  SCC unanimously strikes down all Canada’s prostitution laws (for non Canadians –  sale of sex for money is legal but almost all the things you need to engage in it – especially safely engage – are not).  Suspended judgement for a year.

 

OTHER NEW IN PRINT

A Legal History That’s Really About the Place of Law in History http://jotwell.com/?p=3884 

Introduction: #Feminist #Jurisprudence and the Question of #Home Ann Genovese | feminists@law http://bit.ly/1iLdLOU  +4 more papers

Univ of Toronto Law ‏@UTLaw12 Dec  Prof. Lisa Austin, @mgeist and others write “Our data, our laws” in @nationalpost http://fullcomment.nationalpost.com/2013/12/12/our-data-our-laws/ …

A fun read! The fourth wave of feminism: meet the rebel women | World news | The Guardian http://bit.ly/18A8DU1 

[ok not new but!] from 2005 Remembering Favourite Feminist Legal Scholarship by Backhouse, Buss, Cairns Way, Gilbert http://bit.ly/18k8SHZ  #remake?

in @Feministsatlaw Maria Drakopolou (Kent) Revisiting Feminist Jurisprudence: A Rehabilitation http://bit.ly/1gOjPll 

“rape” law: Rubenfeld’s deception thesis taken on: ‏@YaleLJournal Jed Rubenfeld responds to comments on his article from four scholars including Gowri Ramachandran (SWestern) in the YLJ Delineating the Heinous: Rape, Sex, and Self-Possession http://bit.ly/1iLcFmo  (find the others here http://www.thepocketpart.org/.  Rubenfeld then reiterates that sex-by-deception remains a problem for rape law: http://www.yalelawjournal.com/criminal-law-and-sentencing/1225-rape-by-deceptiona-response …

Higher Education: Look around – not a pretty sight

UK (if you are not following recent happenings in the UK, you should)

#highered in UK – Cdns, have a look at #fairpayinHE #occupysh [+context @guardiannews http://www.theguardian.com/higher-education-network/2013/dec/03/university-strike-3-december-pay … ) & ask: how long do we have?

Brenna Bhandar on “A Right to the University” on LRB blog http://bit.ly/18A2yXL  #injunctions #protest #HigherEd #UK (for now)

USA

 

Bright Spot! Quebec

 

Make Law more Appealing? Law Design Tech & Margaret Hagan at Stanford

Ok, make law VISUALLY appealing?

Over at Stanford, they have started a program in Legal Tech & Design. Law Design Tech | The Program for Legal Tech & Design I like this for a variety of reasons – i do love visualizations, there are clear teaching/learning possibilities, but mainly because of the possibilities for public legal education.    Here are 5 things i liked (some of the links below are to Margaret Hagan’s personal site – she’s one of the main movers behind the Program).

Cool visuals

1.  I love this one (there were a set of them and taken together they really give you a sense of the process).

Law Design Tech | The Program for Legal Tech & Design visualization of So's Immigration Journey
Created by participants in the Stanford Program for Legal Tech and Design hackathon. Click through to tumblr post.

(see below at #5 for more from this series)

2.  And who can resist these “Drawn Law Cases” (by Margaret Hagan and on her personal site)?

Teaching/Learning

3  Margaret Hagan offers her vision of law flowcharts.  Whether instructor or student generated, these fit so clearly with my own learning method for doctrinal information.  I torment my students with very sober looking flowcharts (made with xmind), but imagine if I could make them look like this! [this one is US tax law based, because I know that the tax people don’t think I spend nearly enough time on tax in my posts]

visualization of US tax rules on whether an employee discount is taxable as income
by Margaret Hagan click through for original post

4  The PLTD does have a legal design toolbox, here.  Lots of information, tools, suggestions.

Law+Design for Public Good

5. The PLTD hosted a hackathon on immigration law: http://www.legaltechdesign.com/fwd-us-immigration-hackathon-2/ that produced the “immigration story” above.

Hagan mentored a team:

Our goal was to create a visualization app that would empower immigrants to tell their personal story in a share-able, if not viral way.  The point was to make the complicated (if not, outright broken) immigration system visible, and in human terms rather than in cold, formal, legalistic ways.

Read more from Hagan’s account here

See more “hands on design events” from the Centre, here.  including one about making wikipedia’s new draft trademark policy more user friendly, and a class which will take on the task of visuals for end of life planning.

Bonus: Flicking through Margaret Hagan’s tumblr led me to this post – describing a “role playing game” called “Accused” based on real techniques of psychological coercion.  Try clicking through to the game.  I can’t say you’ll like it, but you definitely learn something!

Enjoy.

 

Need some good news? BC Court rules closure of mother/baby program unconstitutional

After last week’s decisions cutting back LGBT rights in India(criminal law) and Australia (same sex marriage), here’s a court decision of another stripe (different topic, though).

Here is Madam Justice Carol Ross’s decision in Inglis v. British Columbia (Minister of Public Safety), 2013 BCSC 2309

It is LONG. I have not read it – but you might need it right now. h/t Debra Parkes via Lisa Kerr