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

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[Eric & Lola Roundtable] Margot Young: Liberty with a Vengeance

Sonia:  So, do you think that this case sets up a new approach to section 15 (again)?  What’ significant about the way that the section 15 analyses are carried out, compared to previous cases and the divergent decisions in this case?  What about the approach to the “line” between section 15 and section 1?

All the posts in our roundtable can be found here.  We started on Monday with Bruce Ryder, and heard from Hester Lessard on Wednesday and Robert Leckey on Friday. Margot Young wraps up on this question today:

Photo Stream-003MY:  I’m intrigued by Bruce’s metaphor of the psychiatrist’s couch and how to reference that way of framing our struggles to read the tea leaves of the Supreme Court of Canada’s latest equality jurisprudence.  (When challenged, mix metaphors.)  So, here are some “syndromes” I see in recurrent form in this and other equality cases under the Charter.

“Over-Responsibilization”

I think this point will emerge in later conversations, but I want to flag it now as something that plagues Charter jurisprudence generally, and section 15 case law in particular.  The assignment of critical agency to the rights claimant such that the state is removed from any constitutional obligation to address obvious disadvantage is packaged under the guise of respecting liberty and autonomy.  As the individual is put on the hook, the state is let off.  So, the move functions pointedly to “under-responsibilize” the state.  It is common to caution against “equality with a vengeance” in section 15 argument but I think we need to expand this concern to be wary of “liberty with a vengeance”.  Spivak has noted that classical liberal values are often that which we cannot not want, but, here, awareness of these values’ “double-edge” is also warranted.  In any case, the emphasis by Justice LeBel on liberty and autonomy is such as to overshadow equality as the soul of section 15.  It invokes, in unnecessary ways, the formally construed tension between liberty and equality for classical liberals.  I also worry that it packs too much into section 15 and risks failing to carve out sufficient distinction between section 7 and section 15.

Gender Blindness

I want to raise the issue of complainant group.  Clearly the legislation under challenge provides protection for individuals in some relationship forms—marriages and civil unions—and not for others from the economic vulnerability characteristic of many relationships.   Thus it is sensible to see this as a case of discrimination on the basis of marital status.  The shedding of the mirror comparator approach by Withler and the call for a more flexible juggling of group and individual characteristics should encourage the Court to contour its analysis with substantive notice of all of the identity features relevant to the circumstance under examination.   In this case, the gender of the parties and the age gap that encrusts this gender difference are so powerfully part of understanding what is at play.  Some comparison, despite the problems raised by commentators, seems necessarily part of an equality analysis as currently framed by the Court.  It should be done more explicitly and thus more carefully.  As well, while striving to avoid stating that it’s all gender stacked on gender, stacked on gender, I do think the marital status issues in this case are gender manifest.  Only Justice Abella comes close to acknowledging this.  True, social conditions of vulnerability and disadvantage co-occur and layer one atop the other, but “gender” configures social relations in many guises.  And, the Court has never been noted for its transformative and liberatory approach to gender discrimination under section 15.  This case is apiece with that history.

Anxiety

Certainly, section 15 doctrine triggers anxiety or unease in lower courts and litigators alike.  But, I think we can see Chief Justice McLachlin’s judgment from this perspective also.  I am not sure what the majority test for section 15 is after this case.  Chief Justice McLachlin is the swing vote.  She pledges allegiance to the version articulated by Justice Abella, yet then delivers an analysis that is more faithful to Kapp than support for Justice Abella’s reformulation would predict.  In addition, Chief Justice McLachlin’s judgment defaults at the section 1 stage in a somewhat inexplicable manner.  So, she pulls up short on really taking the Quebec policy to task under section 1 and, certainly, from following through on a commitment to Justice Abella’s modified test under section 15.  Substantive equality, properly realized, promises significant redistribution of resources and recognition.  I think this makes the Court as it attempts to mete out justice under section 15 anxious—and therefore cautious, even on occasion, bizarre.

 

 

page 1 of Mikomosis & The Wetiko, Character saying: My name is Headache Cho – Big Headache. I’m a new trickster born of international indigenous feminist consciousness and I’m here to say that we need to create space in the world for indigenous law today. To make this argument, there is no better example than the case of … MIKOMOSIS and WETIKO...

"A new trickster born of international indigenous feminist consciousness": a graphic narrative of Cree law

page 1 of Mikomosis & The Wetiko,  Character saying: My name is Headache Cho – Big Headache. I’m a new trickster born of international indigenous feminist consciousness and I’m here to say that we need to create space in the world for indigenous law today. To make this argument, there is no better example than the case of … MIKOMOSIS and WETIKO...

 

 

This is page 1 of a recently launched graphic narrative produced as part of a research project (full credits below) .

 

This graphic narrative is part of a special national
collaborative research project, “Accessing Justice and
Reconciliation” project by the Indigenous Law Research Clinic
(Faculty of Law, University of Victoria), the Indigenous Bar
Association and the Truth and Reconciliation Commission
of Canada, and funded by the Ontario Law Foundation. (from the front matter)

Here is a news item from the launch.  The story is compelling, short and educational.  The team presents the grim story in a way that packs volumes in yet seems  spare.  Once the story is told, the action moves to a kind of a court, convened by the trickster you see here, perhaps looking like a law professor you know – who assigns three advocates to argue the case in Cree law.  Critiques of this approach are woven into the story.

The medium offers unique ways to connect with a variety of audiences who would be very difficult to reach with more traditional text only programs.  The goal of this book is to (as Headache Cho says) “THIS COURT… SEEKS TO ASSIST THE ARTICULATION AND PRACTICE OF CREE LAW .”   In this way, Mikimosis and the Wetiko shows possible interpretations of the substance of Cree law, but also a way in which that  law could be put into practice.

There are so many reasons to be excited about this

  • because of the way that it will reach new audiences including various combinations of indigenous people, non lawyers and youth
  • because of the collaboration between artists, scholars, students, and elders that this kind of work represents (see full credit list at the bottom of this post)
  • because of the indigenous feminism that the work centres and celebrates
  • because of the introduction to indigenous legal studies it provides
  • because of the opportunity it gives all of us to learn more about the work of Prof. Val Napoleon-(in the credits, she says: I am the Law Foundation Professor of Aboriginal Justice and Governance at the Faculty of Law, University of Victoria in 2012. I am a member of Saulteau First Nation (north east British Columbia, Treaty 8) and an adopted member of the Gitanyow (Gitksan) House of Luuxhon, Ganada (Frog) Clan. My current research focuses on indigenous legal traditions, indigenous feminism, citizenship, self-determination, and governance. Several of my major initiatives include the proposed JID (joint JD and indigenous law degree) program, indigenous law research clinic, and several national andinternational research projects relating to indigenous law.

You can find a longer bio here (her faculty website from the University of Victoria).  Here are some other published works:

  • “Indigenous Discourse: Gender,Identity, and Community.” In Indigenous Peoples and the Law, edited by Kent McNeil and Ben Richardson. UK: Hart Publishing, forthcoming in2007/08.
  • “Making Space for Aboriginal Feminism.” Review of Making Space for AboriginalFeminism, Joyce Green, ed. Briarpatch 36, no. 2 (2007): 29–30.
  • With Richard Overstall. “Indigenous Laws: Some Issues, Considerations and Experiences.”Paper presented at the Centre for IndigenousEnvironmental Resources, Winnipeg, February2007,http://www.cier.ca
  • “Delgamuukw: A Legal Straightjacket for Oral Histories?”Canadian Journal of Law andSociety20, no. 2 (2005): 123–55.
  • “Aboriginal Self Determination: Individual Self and Collective Selves.”Atlantis: A Women’sStudies Journal29, no. 2 (2005): 31–46.
  • “Raven’s Garden: A Discussion about Aboriginal Sexual Orientation and TransgenderIssues.”Canadian Journal of Law and Society (2002) 17, no. 2: 149–71.
To get a copy of the graphic narrative, write to demcon at uvic dot ca – send them your name and mailing address along with your request.  Tell your librarian!

CREDITS
Original Story: Dr. Val Napoleon
Script: Jim Henshaw
Cover & Layouts: Ken Steacy © 2013
Illustrations, pages 1-13: Janine Johnston © 2013
Assisted by: Jazmyn Mari
Illustrations, pages 14-32: Simon Roy © 2013
Assisted by: Jessica Pollard
Project Management & Art Direction: Ken Steacy
Project Coordinator: Renée McBeth, BA, MA
Research Coordinator: Hadley Friedland, LLB, LLM, PhD
Content © 2013 Indigenous Law Research Unit
With thanks to all the amazing students that were part of
the 2012-2013 research. The participating law students
and graduate students are: Lori Groft, Lindsay Borrows,
Aaron Mills, Kris Statnyk, Estella Charleson, Al Hanna,
Hannah Askew, Kerry Sloan, Johnny Mack, Laura Mayer,
and Emily Snyder.

 

WetikoLR2_Page_09

 

 

 

 

 

Many thanks to the team for sending me these pages.

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[Eric & Lola (3)] Robert Leckey: What they say v What they do

Sonia:  So, do you think that this case sets up a new approach to section 15 (again)?  What’ significant about the way that the section 15 analyses are carried out, compared to previous cases and the divergent decisions in this case?  What about the approach to the “line” between section 15 and section 1?

All the posts in our roundtable can be found here.  We started on Monday with Bruce Ryder, and heard from Hester Lessard on Wednesday.  Now, Robert Leckey:

photo of guest blogger robert leckeyRL:  I share Hester’s doubts about the solidity of the cluster that purported to endorse Abella J.’s s. 15 discussion. But I would persist—certainly in advocacy—in taking those judges at their word that theirs is a majority view. The length and pointedness of Abella J.’s and LeBel J.’s discussion on whether a successful claim must show stereotyping or prejudice hints that they, at least, think it matters.

I agree with Bruce that basing a claim on disadvantage rather than stereotyping might help claimants. For example, if the Supreme Court  grants leave in H.C. v. P.N., (Quebec Court of Appeal decision here) – Anne-France Goldwater’s challenge to the feds’ recognition of Quebec’s child-support guidelines for divorce purposes –  it might be much easier to show material deprivation on the part of divorced women and their children in Quebec than animus on the federal government’s.

I’m puzzled, though, by what it means to say that the equality analysis has “evolved substantially” (para 338 in Quebec v. A) such that Walsh need not be followed. At this point, a decade’s string of failed equality claims reveals more about the Court’s receptiveness to s. 15 claimants than does its formulation or reformulation of one test or another.

 

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[Eric & Lola (2)] Hester Lessard: Narrative Strategies of Smoke & Mirrors vs Dramatic Struggles

Sonia:  So, do you think that this case sets up a new approach to section 15 (again)?  What’ significant about the way that the section 15 analyses are carried out, compared to previous cases and the divergent decisions in this case?  What about the approach to the “line” between section 15 and section 1?

All the posts in our roundtable can be found here.

 

Photo Stream-001HL:   Alas, I think I am the one who could use a session on the couch.  Tracing the gyrations contained in the Quebec v. A decision has left me dizzy.   Here is how I think it spins out.

Lebel J. writes first, speaking for a group of four judges.   His equality analysis deploys a narrative frame in which the “about turns and mea culpas” that Bruce refers to are mere window dressing.  Indeed, LeBel J. is convinced that the Court’s understanding of substantive equality has remained fundamentally the same down through the years.   LeBel J. dismisses A.’s equality challenge to her total exclusion from financial remedies (both support and property division) on relationship breakdown.  Neither prejudice nor stereotype, the sine qua non of post-Kapp/Withler equality analysis, are to be found in the legislative design of the Québec family law regime – only legislative respect for A.’s free will.

But hope revives, for Abella J. writes next .   Abella J.’s equality analysis deploys a narrative frame of dramatic struggle.  Law dignity analysis, rigid comparison groups, deference to reasonable legislatures and their good intentions , Walsh’s paean to choice, and the confinement of substantive equality to the Kapp/Withler two pronged “prejudice or stereotype” inquiry  – in Abella J.’s story these are treacheries that have landed our aspirations for justice in danger.  Her sharp pen deconstructs and dispatches them all.  Legislative effects that perpetuate historic disadvantage, she declares, cannot be excused because  legislative attitudes, devoid of prejudice or stereotype, are benevolently concerned with respecting freely made choices.  Moreover, total exclusions cannot be minimally impairing and thus saved at s. 1, when there are clear, less equality violating, alternatives.

Although the only signatory to her reasons,  Abella J. is not alone, at least not completely.   Deschamps J., for a group of three judges, agrees with Abella J.’s equality analysis.   Although Deschamps J. partially upholds the legislation by preserving exclusive property rights at section 1, the story of equality jurisprudence as a struggle to realize our dreams of substantive justice is now in a “four to four” tie with LeBel J.’s story of “changes without a difference”.

McLachlin C.J. is the tiebreaker.  She deploys a narrative strategy that is all smoke and mirrors.  Her agreement with Abella J.’s equality analysis renders it the majority approach.  But in doing so, she re-introduces the reasonable rightsholder,  and the two step consideration of prejudice and stereotype,  paired with the Law contextual considerations, including “correspondence” with its focus on legislative design.  True, she makes much of the need to keep ss. 15 and 1 distinct – fine words, but they are in tension with these other aspects.  And turning to A.’s case, she finds both stereotype and historical prejudice are at play.  I think her equality analysis has as much affinity with LeBel J.’s as with Abella J.’s.

McLachlin C.J.’s approach, in the details, is rooted in an understanding of inequality as irrationality – as reliance on irrelevant considerations, or poor legislative tailoring, or uninformed ignorance, or outright hatefulness.  History teaches us that inequality can easily assume the appearance of reasonableness, of a common sense embrace of natural limits or of individual choices or abilities.   Abella J. has given us a fiercely skeptical approach to these disguises, urging us to keep our eyes on the social impacts of the perpetuation of disadvantagement.  I am uneasy with the characterization of Abella J.’s equality analysis as the majority position.  McLachlin C.J. ultimately rejects all aspects of A.’s claim under section 1, but only for now.

 

 

photo of Bruce RyderBruce Ryder’s comment appeared Monday.

 

 

 

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[Eric & Lola (1)] Bruce Ryder: Doctrinal Plasticity, continued

Sonia:  So, do you think that this case sets up a new approach to section 15 (again)?  What’ significant about the way that the section 15 analyses are carried out, compared to previous cases and the divergent decisions in this case?  What about the approach to the “line” between section 15 and section 1?

 

 

photo of Bruce RyderBR:  I see Quebec v A as the third installment of the Court’s efforts to revise its own recent jurisprudence to reduce the burdens on equality claimants. In Kapp, the Court jettisoned the human dignity test from Law. In Withler, it rejected the mirror comparator group requirement put forward in Auton and Hodge. In Quebec v A, Justice Abella’s majority opinion on s.15(1) rejected the requirement of proving the operation of prejudice or stereotype set out in Kapp and Withler, and refused to follow the Court’s ruling in Walsh. Justice Abella held that claimants should not have to meet the “unquantifiable” and “ineffable” burden of proving that governments were motivated by negative attitudes (paras 329-330). The focus of s.15(1) analysis, she affirmed, should be on the effects of a challenged law: if the law imposes adverse differential impact on a historically disadvantaged group, then it is discriminatory (para 332). The problem with the Court’s earlier ruling in Walsh is it shifted the focus of the s.15(1) analysis from effects to the validity of the legislative objective (paras 338-347).

Cumulatively these are potentially important adjustments to the s.15(1) jurisprudence. They ought to relieve the burdens on s.15(1) claimants and allow the analysis to move more quickly to s.1, where government should have to show why it cannot achieve its objectives without imposing adverse differential impact on historically disadvantaged groups on the basis of prohibited grounds. It all depends on whether the Court is willing to hold the government to a meaningful burden of justification under s.1.

We ought to be sceptical about whether the post-Kapp doctrinal revisions will produce different results. The McLachlin Court’s record on Charter equality rights is distinguished by two features: one is its doctrinal plasticity, the remarkable series of about turns and mea culpas described above; the other, that I’ve documented elsewhere, is its consistent record of dismissing Charter equality claims, regardless of the test applied. In this sense, there is nothing new about Quebec v A, it is just another example of the Court dismissing a Charter equality rights claim in a verbose, overwrought and angst-ridden set of opinions. By way of contrast, the Court has issued clear, confident and succinct rulings on statutory equality rights (eg, Meiorin; Moore). Why are the judges so anxious about Charter equality rights? I think we need to put the Court on the couch. I’m looking forward to my colleagues’ therapeutic insights.