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

What’s interesting these days?

Roundup: Twitter for non-tweeps (Teaching & Learning, Writing, Students and Misc categories)

a periodic feature where we attempt to bring @osgoodeifls tweets and retweets to those who just won’t use twitter, and either convince them to try it, or prove that they are right to avoid it.

Where there is no attribution, the tweet is from @osgoodeifls

Links should work.  Next up in this series, Conferences Calls & Workshops, and the rest of the stuff.

how good do u feel when a friend/colleague (“friendeague”?) says yr work was mentnd in a presentation or something? #takethetimetotell

Lawyer Gigi Basanta’s carefully tailored expert advice to ♀ seeking “menswear” http://issuu.com/intorontomag/docs/may_2013/10 … Style, not shaming – was that so hard?

now we know y cats act superior #catsgetbutler RT @gilliancalder: MT @kootenaydreams “Judith Butler explained w cats http://binarythis.wordpress.com 

“No matter how bad it gets, try one small thing.” time to get out of those ruts. http://bit.ly/16YUvXP 

 

Writing

PhD Forum@PhDForum 2 Jun  Excited by the interest shown in our Academic Writing Portal http://phdforum.crowdvine.com  You can DM for password to portal spreadsheet #phdawp

Dr Inger Mewburn@thesiswhisperer 3 Jun The Thesis Whisperer May newsletter is out and it’s chock full of linky goodness: http://buff.ly/16CjUXY  #phdchat #ecrchat

[i cannot recommend @thesiswhisperer enough to Grad students and supervisors.  Really. Check it out.  On the web too]

h/t s hargreaves: uchicago writing prgm looks good & funny. Write Yr Own Academic Sentence http://bit.ly/yX5eK2  ++ http://bit.ly/172NtRL 

 

Teaching & Learning

Kate@katgallow 28 May Use of online forums promoting effective student learning http://www.ler.edu.au/Vol%2022%20files/Greaves%20and%20Lynch%20abstract.pdf … by @PleagleTrainer #legaled #edtech #highered

Matthew Rimmer@DrRimmer 27 May Legal academics should not be Luddites: @MsCastan @katgallow @PleagleTrainer on #law and #education http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2251736 … A must-read.

Teaching the Skill of Listening in Law Schools http://feedly.com/k/ZrUNUD 

The curve in the upper level http://flip.it/pS4YX ; perennial May/June topic : via Prawfsblawg Trouble with the Curve http://bit.ly/111if59  #abolition? #givemeagoodoptionpls

 

Students

oh. Harvard Crimson 2013 Senior Survey has 30% admitting cheating on “homework”. 7% each on paper/takehome. http://bit.ly/1558ub5 

Students who write thankyou notes: Really, thankYOU. need a box for these.. #everyprofshouldhaveone big or small – for those other moments.

Emailing students – one community college conducts audit, decides less is more & form matters | Inside Higher Ed http://bit.ly/1aydfui 

Examinations and fact patterns too graphic for students.  But….. Curious abt this – Stdts seem defensive here – issue is confused. “Graphic content of C-bridge law exam stuns stdts” http://bit.ly/17iow4Q  ….4 a sec i thought !something pedagogically, ethically interesting! but that’s not the story.

Roundup: Twitter for non-tweeps (New in print & Well said categories)

a periodic feature where we attempt to bring @osgoodeifls tweets and retweets to those who just won’t use twitter, and either convince them to try it, or prove that they are right to avoid it.

Where there is no attribution, the tweet is from @osgoodeifls

Links should work.  Next up in this series, Teaching & Learning, Writing, Students and Misc.

Well said

The Real bell hooks@bellhooks 3 Jun  If you desire to write…..write…..why talk yourself out of writing each time?

 ‏@rhrealitycheck 15 May Too often issues that disproportionately affect women are left out of being declared human rights http://ow.ly/l3FpJ 

 ‏@Kindie_Ninja 17 May Spkr Jessica Danforth: “Being queer & Native doesn’t put me at risk. Homophobia and racism put me at risk.” #Outshine #Egale #TDSB #GBVP

 ‏@biorhythmist 5 Jun  My new hero is the girl on the bus who, when told to smile by a creeper dude, propped up the corners of her mouth with both middle fingers

New in Print

 

Backhouse on Feminist Responses to Sexual Assault http://bit.ly/1awyegT  now avail via SSRN

OHLJ Volume 50 (1) here http://bit.ly/16pcpng  lead article: a2j for witnesses w mental disabilities in SAssault cases Benedet & Grant

new on SSRN Smith on the School-to-Prison Pipeline in scholarship & US doctrine – call for a more structural approach http://bit.ly/1awzCAm 

Isabel Grant reviews Pascale Fournier et al on Jotwell Provoked Intimate Femicides: A Privatized Version of “Honour”? http://flip.it/vWMfD 

Robson@RobsonConLaw 31 May Daily Read: Angela Onwuachi-Willig on Inter-Racial Love and Marriage http://bit.ly/18CXWDQ 

Gruesomeness and the First Amendment (interesting thought about the visual in abortion “discourse”) http://bit.ly/1awyCMp 

Emily Kidd White@emilykiddwhite 5 Jun Exciting! MT @JTasioulas Chris McCrudden’s introduction (draft) to his forthcoming edited volume on Human Dignity. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2218788 …

via jotwell, Tsoukala recommends Kang’ara’s Beyond Bed & Bread: Making the African State Through #Marriage Law Reform http://bit.ly/gBN0X7 

RT @ukclg: Helen Fenwick: Article 8 #ECHR, the #Feminist Article’, Women and a Conservative Bill of Rights http://wp.me/p1cVqo-v4 

Camille Paglia’s Review of Three Academic Studies of BDSM http://bit.ly/173v1bG 

via Feminist law Profs Spindelman’s Review of Dale Carpenter’s “Flagrant Conduct: The Story of Lawrence v. Texas” http://bit.ly/173vb2U 

‘Criminalising Extreme Pornography: Five Years On’ – Introduction to the Blog Carnival and a Storify by Chris Ashford http://flip.it/FZRwL  and  ‘Criminalising Extreme Pornography: Five Years On’ – Dymock on Is criminalisation the answer? http://flip.it/HHy6x 

Consent

Feminist Law Profs@FeministLawPrfs 18 May Sexual Behavior and Critics of Consent Theory http://tinyurl.com/aenfe6d 

Amanda Marcotte@AmandaMarcotte 4 Jun [blogger argues partner’s cheating, lying etc. constituted rape by deception] http://www.feministe.us/blog/archives/2013/06/04/the-subtleties-of-consent-deception-and-sexual-violation/ … Guessing this is going to be controversial.

Sonia Lawrence@OsgoodeIFLS 4 Jun And on the same issue, in the Yale Law Journal. reubenfeld argues against rape-by-deception. http://www.yalelawjournal.org/images/pdfs/1153.pdf …

Quebec v. A Roundtable: Leckey on the symbiosis of law & social forces

 

All the posts in our Eric & Lola AKA  Quebec (Attorney General) v. A, 2013 SCC 5 roundtable can be found HERE.

Sonia said:     I often think that the vast sums involved in many of the “family law” cases which make it to the appellate level have a warping effect.  Does the extreme wealth and notoriety of this case matter?  Did the Court adequately consider the socio-economic impact of dissolution of these relationships, and the impact on children?  If it is the case that we are now at a time where there is almost no stigma attached to not being married, how should we assess the sometimes profound (as in this case) legal consequences?

 

Robert Leckey: Let me start by applauding Margot for tackling head on the inappropriateness of the Lola moniker. (As I understand it, Éric is just a generic male francophone name.) I have systematically avoided referring to the parties by those pseudonyms. I often fall back on the standard (admittedly heterosexist) usage of judges in Quebec family cases, which is to refer to Monsieur and Madame.

 

The extreme wealth mattered and yet it didn’t matter. I doubt it changed much for the justices of the Supreme Court of Canada. If the straitened circumstances of Louise Gosselin and Betty Hodge seem to have had little impact in an equality analysis, I don’t see why more sympathetic facts would have changed things in the cohabitation case. But unquestionably the perceived wealth of the claimant affected her hostile reception by the media and general public. People just never got over the $34,260.24 per month in child support. In particular, they seemed not to grasp that Madame can’t legitimately spend (or save) a nickel of that money for herself. Her receipt of those monies flows fully from the presence of the children and it will presumably cease the moment the children leave home (or say if custody shifted to Monsieur).This picture is meant to represent symbiosis. It's a rhino with some birds sitting on it.

 

The point about stigma is crucial. In Quebec we find ourselves in the peculiar position where in the francophone mainstream there is little social pressure to marry (marriage rates are higher I think in some minority groups). There certainly isn’t a sense that responsible parents get married. Nevertheless, serious legal and economic consequences flow from marital status, for both adult partners and their children. This case has made me reflect on the necessary symbiosis between law and social forces. They need to align in a way they don’t here. Since I don’t think stigma is going to make a comeback, law reform is needed to blunt the impact of marital status.

 


Thanks to Simon Fodden over at slaw.ca for the shout out for this roundtable – who knew that there were readers!

Sonia asked:  Can we read this case, and the reaction of the Supreme Court, as more or equally “a case about Quebec” than an “ordinary” Charter challenge, that is, a case which raises the federal principle?  Is Quebec’s divergent trajectory in terms of the prevalence of marriage and in terms of the development of legal regimes relevant?

“Après le jugement de la Cour suprême sur Eric et Lola, c’est comme si tout le monde s’était dit: «ouf», puis était retourné à ses occupations. “ 

(Guillaume Bourgault-Côté, Conjoints de fait – Eric et Lola n’ont pas éclairé les Québécois, Le Devoir, 21 mars 2013)

Margot Young

Photo Stream-003A recent conversation with Prof. Louise Langevin of Faculté de droit, Université Lavel provided these insights into the case.  First, to the point of consent and ignorance.  Despite widespread media coverage in Quebec about the issues and outcome of Quebec v A, it appears that the messages about the consequences of de facto intimate partnerships have yet to sink in.  A March 2013 study by the Quebec Chambre des notaries shows that the rights and obligations attendant upon separation by these couples remains badly understood.  Myths persist.  Many (46%) continue to belief incorrectly that after a number of years living together, they obtain the same legal status as married persons.  The study showed that 62% of the respondents believed that all goods acquired during the de facto relationship must be divided equally upon relationship breakdown. About 42% of the respondents did not know that if one partner is the sole owner of the family home, that home can be sold without the other partner’s consent.  Clearly, it is not the case that much meaningful consent to the situation in which A found herself is going on.  And, this argument about consent sits independent of larger concerns about gendered power that are also importantly a piece of the analysis of consent.

Second, to gender and sexism.  The origin of this nickname for this case, Eric v Lola, appears to have been a weekly Quebec news show.  I’m uncomfortable with the designation.  The name “Lola” packs gendered baggage, at least for Anglophones.  The popular music hall song “Whatever Lola Wants, Lola Gets” adds a particular and, I would argue, stereotypical and sexist flavour to A’s claims for support and property division.   Can’t find anything to account for the choice of “Eric”.  Anyone else?  Also, as a sidenote, the designation Eric v Lola isn’t much in circ

painting of Lola Montez

ulation out west.  When I first heard the reference, I panicked that I had somehow missed a significant equality case out of the SCC!

[Sonia:  I didn’t know the Whatever Lola Wants, Lola Gets song, the lyrics of which Margot provides below (Simon Fodden also referenced it),

although I think I’ve heard the Natacha Atlas version now that you mention it.  I only thought of the Kinks song (which also clearly racializes “Lola”, and involves dancing, but has a very different point) and a set of  stereotypes about Latinas as physically attractive seductresses which have a clear effect given the facts of this case.    None of which stopped me from gleefully adopting it  the ever present danger of trying to grab attention, which inevitably involves hooking on to tropes of what is interesting.  SEX!  Perhaps I need to treat this case as I try to treat  Canadian Foundation for Children, Youth and the Law v. Canada, [2004] 1 S.C.R. 76, which I will not call “the spanking case”, because of the way that turns the case name into the decision.]

Whatever Lola wants, Lola gets
And little man, little Lola wants you
Make up your mind to have (make up your mind to have)
No regrets (no regrets)
Recline yourself, resign yourself, you’re through

I always get what I aim for
And your heart and soul is what I came for
Whatever Lola wants (Lola wants), Lola gets (Lola gets)
Take off your coat, don’t you know you can’t win
(Can’t win, you’ll never, never win)
You’re no exception to the rule
I’m irresistable you fool
Give in (Give in, you’ll never win)

Whatever Lola wants, Lola gets

I always get what I aim for
And your heart and soul is what I came for
Whatever Lola wants (Lola wants), Lola gets (Lola gets)
Take off your coat, don’t you know you can’t win
(Can’t win, you’ll never, never win)
You’re no exception to the rule
I’m irresistable you fool
Give in (give in, you’ll never win)
Give in (give in, you’ll never win)
Give in.

 

Sonia asked:  Can we read this case, and the reaction of the Supreme Court, as more or equally “a case about Quebec” than an “ordinary” Charter challenge, that is, a case which raises the federal principle?  Is Quebec’s divergent trajectory in terms of the prevalence of marriage and in terms of the development of legal regimes relevant?

Robert Leckey

2818951774_536bc58103_o

This judgment can’t be fully understood without attention to its Quebec specificity. By that I mean not only the distinctive features of Quebec civil law’s regulation of the family, but also the Supreme Court justices’ sensitivity to the dynamics of provincial politics.

Hester wished there had been more account in the reasons of feminist organizing. Quebec feminism has unfolded differently than elsewhere in the country. Until recently, the Conseil du Statut de la Femme (http://www.csf.gouv.qc.ca/) opposed ascribing spousal status to unmarried cohabitants under the private law. I imagine that the judges were hesitant to overturn a regime on the basis of a rights claim that didn’t appear to be significantly supported by its principal beneficiaries. (There was just one intervener from Quebec in favour of finding unjustified discrimination, the Fédération des associations de familles monoparentales et recomposes du Québec (http://www.fafmrq.org/).)

Aware of the outrage occasioned by prior decisions upholding the Charter right to freedom of religion or to minority-language schooling, was the Chief Justice saving her powder, so to speak, for a claim advanced with obvious support from the vulnerable group in question?

I agree with Hester that the Chief Justice’s discussion under section 1 is unnerving. It’s not unprecedented to see political sensitivity to Quebec surface in section 1 analysis in a way for which the Oakes test didn’t prepare us. In a challenge to the federal government’s use of Quebec’s child-support guidelines for Divorce Act cases (http://www.canlii.org/en/qc/qccs/doc/2011/2011qccs2662/2011qccs2662.html, overruled by the Court of Appeal on the basis that there was no infringement of s. 15), the trial judge found a limitation of the right to equality. But she upheld it under section 1 on the basis of co-operative federalism (!).

Hester Lessard

I feel that this case is haunted by a number of issues – Québec’s distinctiveness, the relationship between federalism and Charter issues, and the weight to be given to democratic engagement in relation to the rights issues.   The story of legislative reform told by LeBel J., at great length, certainly amplifies the singularity of Québec’s history and approach.  However, I was interested to hear, in his earlier post, the comment by Robert (wearing his hat as a Québec family lawyer) that LeBel J.’s account overlooks the fact that “reading Québec family law as a whole, protecting individuals from the vulnerability arising from conjugality has outweighed choice for decades.”  It would seem, with such a rich historical and legislative record, that there are a number of ways to fashion the narrative.  LeBel J.’s reasons pursue a very clear thread in this complicated weave, highlighting the insistence, in 1973, of the Québec Conseil du Statut de la Femme that “choices” made by members of de facto unions should not be subject to legislative override but should be respected as the “true recognition of the equality and autonomy of individuals” (para 107).   The link between the story’s shape and LeBel J.’s conclusion that rights have not been violated is not made explicitly, yet it clearly facilitates his conclusion that there is no stereotyping or prejudice involved on the part of the Québec legislature, just respect for choice.

The Chief Justice, in contrast, is very explicit.  Her abrupt reversal of position at section 1 is couched in the language of deference to Québec.  She directly invokes federalism and the “federal values of distinctiveness, diversity and experimentation” as considerations in relation to the minimal impairment analysis.  I am uneasy with an approach that uses the “limitation on rights” role of section 1 to cement into place too simplistic an opposition between rights concerns, and diversity and democracy concerns.  Something is wrong with a picture that portrays women’s equality rights as violated, with devastating social and economic consequences, but that then invokes the democratic will to conclude that the violation is reasonable.   This analytical move seems to erase women’s voices from democratic deliberations, locating their concerns on the “rights” side of the equation, where they can speak only of their injuries and never of their claims as fully enfranchised members of a political community.  I would rather see the democratic engagement issue as a more explicit theme at both the rights analysis and limitation stages.  To this extent, I appreciate LeBel J.’s willingness to take up a lot of space with the historical details of legislative changes.  I would like, however, to see more evidence of competing stories.  As it stands, his account overshadows all others simply because of its length.  Are judges too quick to treat legislative history and political actions as mere background, a “blank” that someone must fill in before getting down to the real business of abstract, normative analysis?

More particularly, I would like to see more attention to feminist and women’s movement involvement with the nub of the rights issue.  I agree with Reva Siegel’s notion that social movements play a “jurisgenerative” role in relation to rights (“Jurisgenerative Role of Social Movements” found here).  She argues, albeit in the U.S. context,  that social movement interventions are not mere supplements to judicial deliberations but rather claims on constitutional meaning in their own right (“Text in Contest” at 299 found here).  This “jurisgenerative” role of social movements in shaping the content of rights protections was crucial in the Insite case (found here).  However, the intensity of grassroots political engagement around harm reduction approaches to addiction that led to the Insite litigation is only vaguely gestured at in the judicial reasons, and thus similarly “haunts” the decision.  I think we must confront this unhappy ghost and develop more inclusive, politically grounded conceptions of how meaning is given to rights.

 

Robert Leckey: May 28:   I think that Margot, by agreeing with LeBel J. (on one thing, at least), overstates the irony of Abella J.’s invocation of opting-out. Opting-in and opting-out are distinguishable from the perspective of someone skeptical of liberal ideas of choice. A consensual opting-out from inclusive default rules provides a moment at which the more powerful spouse must persuade the other to conclude a transaction, what the civil law calls a juridical act. In turn, there are legal tools for scrutinizing the integrity of the opting-out – not just the common law’s doctrines of duress, mistake, and unconscionability, but also more searching judicial review under some provinces’ family legislation. Or a rule that independent legal advice is strongly advisable. So there is at least a hook, in the law, for interrogating the conditions in which a “choice” was ostensibly made and given legal effect.

Margot Young: Robert’s comments here illustrate well the failure of judges other than those signed on to Justice Abella’s judgment to “open the box”—that is to unwrap the package of marriage law and reveal the reasons for the particular property and support protections mandated for married and civil status partners.  Justice Abella herself notes this—her analysis operates more substantively reflecting the social and economic reasoning that underpins the legislative regime.  And, then, her analysis nicely notes that this analysis pertains equally to those in relationships akin to Eric and Lola’s.

Robert also highlights the inconsistency in rationale across public and private law.  These sorts of inconsistency are revealing—often they signal the tip of a larger ideological iceberg. Here, one wonders about the gender, class, and social norms that inform Justice LeBel’s assumptions about the meaningfulness or the availability of choice in intimate relationships.  Indeed, Justice LeBel seems to understand the position that choice is not a meaningful gauge for relationship legitimacy as itself a harmful stereotype, one that his judgment proudly rejects.

We see in this case the persistence of legal liberalism, that is, a particular shaping of the “justice-worthy subject” and the preeminence of choice as agency-anchor and legitimator of social and political oppression.   In contrast,  “…a left political orientation begins with a…focus on the social powers producing and stratifying subjects that liberalism largely ignores.” (Wendy Brown and Janet Halley “Introduction” in Wendy Brown & Janet Halley, eds, Left Liberalism/Left Critique (Durham: Duke University Press, 2002) 1 at 6.)  For example, “male dominance”.

There is an irony to both sides in this case.  Justice Abella in rejecting the adequacy of consent, then relies on it to constitute her “opt out” scheme.  Justice LeBel points this out:

My colleague Abella J. adopts a position that would require these spouses to perform positive acts to opt out of a regime they did not intend to adopt. She would thus require them to exercise a freedom of choice whose validity and relevance she nonetheless denies in the context of opting for a particular form of conjugality. (para 261)

Choice is a distraction from the real question.

However, equally, Justice LeBel is subject to this same critique—only in mirror image.  He too accepts imposition regardless of consent for the obligations in marriage and civil unions.,  Yet, he denies its relevance to de facto couples, despite similar larger contexts.   It seems to me that the way out of this box is to look to the justice of the status quo that persists independent of consent for de facto couples for each scheme.  For LeBel, it is the unregulated but long (otherwise) acknowledged state of gendered unfairness.  For Justice Abella, it is the state regulated insistence on mutual property and support obligations as remediation of such gendered unfairness and disempowerment.  Choice is a distraction from the real question.

 

Margot Young’s comments respond to Robert Leckey’s post – which you can find either here, with all our other Eric & Lola posts, or below.

Robert Leckey:  Hester has nicely set out the different takes on choice (see below for Hester Lessard’s post). Wearing my hat as a Quebec family lawyer, what disappoints me is that the judges other than Abella J. signed onto accounts of choice that don’t square with the contested positive law.

LeBel J. accepts Quebec’s claim that protecting unmarried partners’ freedom of choice is its key aim. But reading Quebec family law as a whole, protecting individuals from the vulnerability arising from conjugality has outweighed choice for decades. That’s the only way of understanding the decision to shield married spouses’ sharing of the family home’s and pension plans’ gains during the marriage from contracting out.

Deschamps J. does better with her division, under section 1, between support and property. But the idea of conscious, acquisitive transactions fails to distinguish the “property” regimes from the concerns underlying support. The property regimes include measures protecting the family home, which I’ve argued elsewhere are alimentary in character.   And automatic pension or RRSP contributions off every paycheque or a home’s appreciation in value are hardly conscious transactions.

The key point about choice lies at private and public law’s intersection. Quebec already assimilates unmarried to married spouses for purposes such as taxation, workers’ compensation, public pensions, and welfare. Good or bad for a couple, there is no “opting out” from that treatment.

The unanswerable reason that excluding unmarried couples from the private law’s obligation of support is unjustifiably discriminatory is that public laws already claw back benefits on the irrebuttable presumption that cohabitants support one another (thanks on this point to Rod Macdonald).

If Quebec were serious about the justifications it advanced for its private law—preserving a zone of autonomy for informed, rational unmarried couples to shape their destinies—it would allow cohabitants to opt out from public law’s spousal designation.

 

 

Robert was responding to Hester’s post & my question, which are set out below:

 

 

HL:  Satisfactory?  Well, at least we get more choices about what the choice to tie the knot, or not, means.   

LeBel J. aligns the “knot, or not” choice with “personal autonomy and freedom,” (para 267).  This broad principle, we find out elsewhere, concerns the “freedom of those who wish to organize their patrimonial relationships outside the mandatory framework” (para 256).  The plural possessive is deceiving, for it is B.’s patrimonial relationship that gets “freely” organized.  It turns out that A. alone has made what is primarily a “marital status” choice, namely to live “with a spouse who refuses to marry,” a choice that, for LeBel J., is on a par with the choice of “a spouse who gives in to insistent demands to marry” (para 260).  LeBel J. concedes that the A.s of the world will likely end up in financially precarious positions when relationships end, but, he points out, each conjugal form has disadvantages for “one” of the spouses (para 242).  The marriage disadvantage presumably refers to those who, unlike B., cave to “insistent demands” and find they must submit to the protective regime.  And so, in LeBel J.’s judgment, choice language is the “ideological glue” (see H. Lessard Charter Gridlock:  Equality Formalism and Marriage Fundamentalism” in Sheila McIntyre and Sanda Rogers, Diminishing Returns:  Inequality and the Canadian Charter of Rights and Freedoms (LexisNexis 2006)291-316 at 316 – not available online, sorry!) binding the twin pillars of classical liberalism – formal equality and negative liberty – to a conception of conjugality and property rights rooted in a conservative and patriarchal tradition.

For Deschamps J., choice need not masquerade as liberal principle; rather it is, quite unapologetically, economic self-interest.  The purpose of the legislative protections (more precisely, the lack of protections for defacto spouses) is “to ensure the autonomy and fairness for couples who have been able to, or wanted to, accumulate property” (para 392).  Oh foolish A., for seeking to “bridal” this freedom!   Deschamps J. further explains that it makes sense to speak of decisions about property as “choices” because property acquisition, of necessity, involves a transactional moment, what she calls a “conscious act,” unlike “a plan to live together” that can evolve gradually into “a relationship of interdependence over which one of the parties has little or no control…” (para 393).  And preserving choice for the propertied by upholding the patrimonial protections would not compromise economic justice because Deschamps J. would remove A.’s exclusion from support remedies.

Abella J. seems aware of the treachery that choice language can wreak, locating it some distance from “principle” by relegating it to the status of legislative policy, and even then reluctantly (para 358).  When talking of conjugal relationships, she prefers the language of “mutual decision” (para 375), underscoring the fact that “knot, or not” choices involve a two way negotiation structured by inequality that is too often gendered.   Like all her other colleagues, she sees the ultimate choice at stake in terms of contractual freedom, but, for her alone, equality and economic justice should prevail without qualification.  A less impairing regime, she offers, would apply property and support provisions presumptively to all, allowing couples to “opt out.”   Bargaining for financial security would be thereby untethered from marital status, rendering conjugal “choice” less illusory (para 376).

McLachlin C.J.’s intervention is profoundly conflicted.   She embraces Abella J.’s view that marital status is emphatically not about choice and that the exclusions violate substantive equality, but then upholds the entire regime in the name of the public interest in a “state free zone” of private choice.  She rejects Abella J.’s less equality-impairing “opt out” alternative because it is more choice-impairing. Not even the “ideological glue” of choice language can hold this judgment together!

Question 3 

I feel that this case is haunted by a number of issues – Québec’s distinctiveness, the relationship between federalism and Charter issues, and the weight to be given to democratic engagement in relation to the rights issues.   The story of legislative reform told by LeBel J., at great length, certainly amplifies the singularity of Québec’s history and approach.  However, I was interested to hear, in his earlier post, the comment by Robert (wearing his hat as a Québec family lawyer) that LeBel J.’s account overlooks the fact that “reading Québec family law as a whole, protecting individuals from the vulnerability arising from conjugality has outweighed choice for decades.”  It would seem, with such a rich historical and legislative record, that there are a number of ways to fashion the narrative.  LeBel J.’s reasons pursue a very clear thread in this complicated weave, highlighting the insistence, in 1973, of the Québec Conseil du Statut de la Femme that “choices” made by members of de facto unions should not be subject to legislative override but should be respected as the “true recognition of the equality and autonomy of individuals” (para 107).   The link between the story’s shape and LeBel J.’s conclusion that rights have not been violated is not made explicitly, yet it clearly facilitates his conclusion that there is no stereotyping or prejudice involved on the part of the Québec legislature, just respect for choice.   

The Chief Justice, in contrast, is very explicit.  Her abrupt reversal of position at section 1 is couched in the language of deference to Québec.  She directly invokes federalism and the “federal values of distinctiveness, diversity and experimentation” as considerations in relation to the minimal impairment analysis.  I am uneasy with an approach that uses the “limitation on rights” role of section 1 to cement into place too simplistic an opposition between rights concerns, and diversity and democracy concerns.  Something is wrong with a picture that portrays women’s equality rights as violated, with devastating social and economic consequences, but that then invokes the democratic will to conclude that the violation is reasonable.   This analytical move seems to erase women’s voices from democratic deliberations, locating their concerns on the “rights” side of the equation, where they can speak only of their injuries and never of their claims as fully enfranchised members of a political community.  I would rather see the democratic engagement issue as a more explicit theme at both the rights analysis and limitation stages.  To this extent, I appreciate LeBel J.’s willingness to take up a lot of space with the historical details of legislative changes.  I would like, however, to see more evidence of competing stories.  As it stands, his account overshadows all others simply because of its length.  Are judges too quick to treat legislative history and political actions as mere background, a “blank” that someone must fill in before getting down to the real business of abstract, normative analysis? 

 More particularly, I would like to see more attention to feminist and women’s movement involvement with the nub of the rights issue.  I agree with Reva Siegel’s notion that social movements play a “jurisgenerative” role in relation to rights (“Jurisgenerative Role of Social Movements” found here).  She argues, albeit in the U.S. context,  that social movement interventions are not mere supplements to judicial deliberations but rather claims on constitutional meaning in their own right (“Text in Contest” at 299 found here).  This “jurisgenerative” role of social movements in shaping the content of rights protections was crucial in the Insite case (found here).  However, the intensity of grassroots political engagement around harm reduction approaches to addiction that led to the Insite litigation is only vaguely gestured at in the judicial reasons, and thus similarly “haunts” the decision.  I think we must confront this unhappy ghost and develop more inclusive, politically grounded conceptions of how meaning is given to rights. 

 

 

Law's Slow Violence Guest Post: Dayna Scott on Feminist Epistemologies for Knowing (& Resisting) Law’s Slow Violence

As part of the Law’s Slow Violence workshop hosted by Osgoode Hall Law School next week (June 14) (complete information here or at the bottom of this post), we have solicited guest posts from academics attending the workshop and interested in the issues.  First up, Professor Dayna Nadine Scott, of Osgoode, argues that understanding law’s slow violence means embarking on a widespread project of applying feminist epistemologies and re-orienting our legal and regulatory regimes to make them more receptive to experiential knowledge of harm.

Other posts coming soon – all will be available here.

Photo by Anne McClintock.  in Anne McClintock, Slow Violence and the BP Oil Crisis in the Gulf of Mexico: Militarizing Environmental Catastrophe on the subject of archives — Editorial Remarks — Marianne Hirsch and Diana Taylor Volume 9  |  Issues 1 and 2  | Summer 2012 http://hemisphericinstitute.org/hemi/en/e-misferica-91/mcclintock
Photo by Anne McClintock. in Anne McClintock, Slow Violence and the BP Oil Crisis in the Gulf of Mexico: Militarizing Environmental Catastrophe in e-misférica: on the subject of archives Volume 9 | Issues 1 and 2 | Summer 2012 available at http://hemisphericinstitute.org/hemi/en/e-misferica-91/mcclintock

Feminist Epistemologies for Knowing (& Resisting) Law’s Slow Violence

In advance of next week’s workshop, I’ve been thinking a lot about Rob Nixon’s call for strategies for making slow violence visible. Making it visible means being forced to confront it.  But we also need to understand it.  The question of how to know slow violence, and ultimately resist it, is an epistemological one.  In considering what feminist theory has to contribute to the discussion of environmentalism of the poor, beyond the notion of gender violence (which I hope we can unpack further next week), I’ve come to believe that an attempt to draw together the dynamics that Nixon elaborates and the rich theoretical work on feminist epistemologies would be a productive project.

That is, it is possible that the aim of ‘knowing’ slow violence would be aided by an ambitious, concerted effort to apply feminist epistemologies – specifically, work that systematically breaks down the ideal of the abstract, interchangeable, independent and autonomous “knower” of liberal political theory. We need to drill down in our inquiries, right down to where knowledge is made, negotiated, and put into circulation.  We need to adopt a conception of materially-constituted and situated subjectivity in which place, bodies, and complex interdependencies are the actual conditions through which the possibility of “knowing” emerges.  As many of you will have already guessed…I’ve been (re)reading Lorraine Code.

Our work in understanding slow violence, and law’s complicity in it, requires hearing the voices of the people on the ground that are experiencing slow violence.  Environmental justice activists have long been putting forward the claim that experiential knowledge is robust and that it matters (see for example, the work of organizations I recently connected with in California – Global Community Monitor and the Center on Race, Poverty and the Environment). But even as experiential knowledge comes into vogue in academia, formal law and its institutions continue to conform to the attitude that the only legitimate ways of knowing the human body involve, as Stacy Alaimo says in Bodily Natures, the “instruments and institutions of science and medicine” (27).  We know that none of these are immune to culture or ideology, and none can escape their social origins. We know that these instruments and these institutions, as Nixon demonstrates, work to obscure the violence that follows them. To resist, we need to counter the “epistemologies of mastery” grounded in the ideal of a universally translatable truth to be found by individual, autonomous subjects working alone.  We need to recognize that all knowledge is situated, partial, and generated according to shared norms and local customs.

What are these feminist epistemologies?  There is the emerging body of literature in feminist theory of the body building on Alaimo’s notion of “trans-corporeality”.  It is organized around an assumption of the porosity and permeability of bodies, emphasizing the movement and exchange between and across human bodies and nonhuman nature. According to these feminists, there is a material basis to life: an immediate, potent materiality that challenges all that the apparently autonomous, bounded, monadic liberal legal subject would like to disavow.  Their work, in my mind, owes much to sociologists of science such as Harding, Haraway, Barad and the philosopher Lorraine Code.  Code’s notion of ecological thinking “is an empirically-based, evidence-respecting position that takes empirical evidence seriously while contending that evidence rarely speaks for itself either in its claims to count as evidence or in its meanings and implications” (23). The claims of positivist science “may not indeed be rendered false” through ecological thinking, but their limitations, according to Code, are likely to be exposed , and their pretense to “the one true story” are likely to be challenged (30).  Under this type of framework, experiential knowledge can claim an enhanced status — not an uncontested credibility or authority, but a basic validity.

To say that experiential knowledge is local and situated, collectively generated and held, and emanating from place — instead of undermining its credibility or authority – simply exposes how all knowledge in fact shares these attributes.  Conventional science is no less situated: feminists and sociologists of scientific knowledge have demonstrated over and again how it emerges as well from a particular social context and set of shared norms.   The laboratory scientists that turn observations of the world into numbers on a page are implementing a specific set of norms, applying a shared code. That code is generated  and held in a particular setting. It is as difficult to discern by others, and to communicate beyond this setting, as any locally-held experiential knowledge of a group of residents.  In other words, laboratory technicians working under a model of positivist science draw conclusions on the basis of the application of a set of conventions, collectively held, in the same way that people affected by slow violence draw conclusions about pollution or contamination on the basis of their senses, their rich knowledge of their health problems, and their detailed knowledge of their place.

It is the legal regime, the complex of rules and institutions that draw conclusions on the basis of scientific knowledge that really matters.  It is here that we underscore and maintain distinctions between types of knowledge, and police the process through which some knowledge is permitted to achieve the status of evidence.  It happens not just in courtrooms, where the credentials of experts are tested, and where first-hand testimonies grounded in sensory experience are denigrated.  It happens in the ho-hum regulatory decision-making that is much more determinative of the conditions of the ‘environments of the poor’ over the long haul. My colleague (and former supervisor) Liora Salter, years ago, memorably called this obscure process of incorporating science into standard-setting processes the “housework of capitalism”.

If you have been following the Globe & Mail (Canadian newspaper) series on the way that the unequal sharing of domestic drudgery is ‘straining modern marriages’, you may be surprised (or not) to hear that this particular brand of housework is performed overwhelmingly by highly-educated and over-credentialed men.  Access to these standard-setting venues is typically restricted to those with the right CV, the accredited expertise; those that conform to the ideal of the independent-thinking, autonomous “knower” with a view from nowhere.  Experiential knowledge of everyday environments, in contrast, is a view from somewhere (in Donna Haraway’s sense).  It is a way of knowing grounded in bodily experience  — it constitutes sensory, but also social knowledge.  To validate it in law, we need to find a way to undermine western science’s focus on the idea of a universally translatable truth to be found by individual, autonomous subjects working alone.

The project is as important for critical theorists to grasp as it is for positivists. This is the crucial insight emerging from this strand of feminist theory: that to recoil from empiricism in favour of social construction is in many respects to concede the game.  We must engage with the close study, careful measurement, time-consuming observation, and meticulous modelling of life and the material world, in order to guard against the possibility that in our eagerness to reveal the way all of these truths are ‘made’ and not ‘found’, we risk “colluding with commercialism”, as Kidner argues, in an industrialist-extractionist project that insists that any material basis to life and experience can be transcended.  Nixon’s book is a stark reminder of the slowly-emerging consequences of this mistake.

Up next on my reading list? Karen Barad’s “Meeting the Universe Halfway”.

 


 

Law’s Slow Violence Workshop June 14, 2013

 

poster for event contains same intormation as text on page

Law’s Slow Violence: A workshop at Osgoode Hall Law School

Friday June 14 2013

930AM to 430PM     Osgoode Hall Law School IKB 1014

with Rob Nixon, Rachel Carson Professor of English at the  University of Wisconsin-Madison,

Author of  Law’s Slow Violence & the Environmentalism of the Poor, HUP 2012

Registration is Free but Limited

RSVP www.osgoode.yorku.ca/research/rsvp  Event Code SLOW

Copies of the book are available at the York University Bookstore.

Order the book from Harvard University Press here  Order the book from Chapters/Indigo bookstores here.

Read Professor Dayna’ Scott’s review of the book (published in the Osgoode Hall Law Journal) on SSRN, here:

With gripping urgency, Rob Nixon’s book “Slow Violence and the Environmentalism of the Poor” seeks to reveal the “occluded relationships” between transnational economic actors and the things that tie them to particular places, such as labour, land, resources and commodity dynamics.

He brings into view the bodies caught in the middle – those that have been raced and erased, made invisible, and wiped away — by exposing the violence perpetrated against them across time and space. Nixon’s work is a broad synthesis of a seemingly disparate set of literatures in post-colonial studies, eco-criticism and literary studies. His arresting narrative engages three primary concerns: the phenomenon of “slow violence,” the environmentalism of the poor; and the role of the writer-activist in the work of making the first two ‘visible.’

Slow violence, in Nixon’s conception, is “a violence that occurs gradually and out of sight, a violence of delayed destruction that is dispersed across time and space, an attritional violence that is typically not viewed as violence at all.”

Because he views a major aspect of the critical challenge to be representational – the problem of devising “stories, images and symbols adequate to the pervasive but elusive violence of delayed effects” – Nixon focuses on the storytellers themselves. And the storytellers he chooses are the writer-activists that have inspired an environmentalism of the poor, primarily in the Global south. They include Arundhati Roy, Ken Saro-Wiwa, Abdulrahman Munif, and Jamaica Kincaid, among others. They are all figures who, like Nixon, demonstrate a stubborn resistance to liberalism’s urge to “locate violence outside law.” Instead of treating law as that which contains violence, they plainly confront its complicity.

[abstract]

The organizers gratefully acknowledge

the financial support of

the Dean’s Conference Fund,

a Harry Arthurs Collaborative Grant,

Osgoode’s Law.Arts.Culture initiative.

the Institute for Feminist Legal Studies,

& York’s Vice-President’s Research and Innovation

the work of

Natalia Angel (Osgoode Doctoral Candidate)

the administrative & organizational expertise of

Lielle Gonsalves and Jody-Ann Rowe-Butler

 

 

Participants

Rob Nixon is currently the Rachel Carson Professor of English at the University of Wisconsin-Madison. Professor Nixon received his Ph.D. from Columbia University and is the author of London Calling: V. S. Naipaul, Postcolonial Mandarin (Oxford University Press); Homelands, Harlem and Hollywood: South African Culture and the World Beyond (Routledge); Dreambirds: the Natural History of a Fantasy (Picador); and Slow Violence and the Environmentalism of the Poor (Harvard University Press 2011). Professor Nixon is a frequent contributor to the New York Times; his writing has also appeared in publications such as The New Yorker, Atlantic Monthly, London Review of Books, Times Literary Supplement, Village Voice, The Nation, The Guardian, Outside, Chronicle of Higher Education, The Independent, Critical Inquiry, PMLA, Social Text, Slate, South Atlantic Quarterly, Transition, Cultural Critique, Contemporary Literature, Journal of Commonwealth and Postcolonial Studies, Ariel, Modern Fiction Studies, New Formations, and Black Renaissance/Renaissance Noire. He has published over ninety journal articles, essays, and book chapters.  Professor Nixon teaches environmental studies, postcolonial studies, creative nonfiction, African literature, world literature, and twentieth century British literature. He is a former chair of the Border and Transcultural Studies Research Circle and is affiliated with the Nelson Institute for Environmental Studies, the Center for Culture, History, and the Environment (CHE), the African Studies program, and the Creative Writing Program.  Professor Nixon has been the recipient of a Guggenheim Fellowship, a Fulbright-Hays Fellowship, a MacArthur Foundation Peace and Security Fellowship, and a National Endowment for Humanities Fellowship. He is currently a Senior Fellow at the University of Wisconsin-Madison Institute for Research in the Humanities.

 

Jeremy Baskin is a Senior Associate at the University of Cambridge’s Programme for Sustainable Leadership, a Senior Fellow at Melbourne Business School, and an Adjunct Professor at Latrobe University. In each role he focuses on the implications of social and environmental (un)sustainability for major organizations in business, government and civil society. From South Africa, he was previously a leading trade unionist, anti-apartheid activist and writer. Post-apartheid, he was a senior public servant and advisor to the Mandela Presidency. From 2001 he headed a UK-based global research team, examining the social, environmental and ethical practices of major global companies. From 2005 he has worked at Cambridge University. He moved to Australia in 2007.

 

Amar Bhatia is completing his S.J.D. in the Faculty of Law at the University of Toronto.  His work focuses on the status and authority  of migrant workers and Indigenous peoples under Canadian immigration law, Indigenous legal traditions, and Canadian Aboriginal law.  He received his LL.B. from Osgoode Hall and then articled and worked in union-side labour and employment law in Toronto before returning to graduate school, where he received the Howland Prize in U of T’s LL.M. program.  His article entitled “The South of the North: Building on Critical Approaches to International Law with Lessons from the Fourth World” (2012) appeared in a special symposium issue of the Oregon Review of International Law on Third World Approaches to International Law.  Another recent publication entitled “In a Settled Country, Everyone Must Eat’: Four Questions About Transnational Private Regulation, Migration, and Migrant Work” appeared in the German Law Journal (Dec. 2012).

 

Ruth Buchanan is Associate Professor at Osgoode Hall Law School.  She has research and teaching interests in the areas of law and development, international human rights, international economic law, critical legal theory, and law and film.  Her work frequently engages with issues of legal pluralism, resistance and affect.  She is a co-editor of Reading Modern Law: Critical Methodologies and Sovereign Formations (2012).  She has authored numerous articles and book chapters, including “Writing Resistance into International Law” (2008) International Community Law Review and “”Passing through the Mirror: Dead Man, Legal Pluralism, and the Deterritorialization of the West.” (2011) She holds an LLM and an SJD from the University of Wisconsin-Madison, and has also taught at the University of British Columbia, the University of New Brunswick, and University of Melbourne law schools.

 

Bryony Halpin is a PhD candidate in the Faculty of Environmental Studies (FES) at York University.  She holds a Master of Arts in Public Policy and Administration from Ryerson University and a Bachelor of Arts in Political Science from Concordia University.  Before joining FES, Bryony was awarded a Walter and Duncan Gordon Foundation water policy fellowship and conducted research for the non-profit sector in New York, Mumbai and Toronto.  She has been a course director at both York University and Ryerson University.  Bryony’s work is centered on environmental justice, racialization and the postcolonial city.

 

Douglas Hay is a Professor at York Universtity, cross-appointed to Osgoode Hall Law School and York’s Department of History since 1981, teaching the comparative history of criminal procedure, punishment, and crime, and the history of private law in the common law world.  He is co-director of a continuing international project on the evolution of the contract of employment (Hay and Craven, Masters, Servants and Magistrates in Britain and the Empire, 1562-1955 (2004) and other titles.)  Recent work includes the history of the English high court’s criminal jurisdiction (Crown Side Cases in the Court of King’s Bench, 2010), and Professor Hay is presently writing about the administration of the criminal law in Georgian England.  He has published on the history of English and Quebec criminal law; comparative history of criminal procedure; social history of crime; judicial biography; courts and their political significance; and the history of employment law.  He has been a visitor at Yale, Warwick, and Columbia law schools, and has been on the boards of the Canadian Historical Review, Law and History Review, the Law and Society Association, and the American Society for Legal History.

 

Sonia Lawrence is Associate Professor at Osgoode Hall Law School. She graduated from the University of Toronto’s joint LLB/MSW program, and went on to serve as law clerk to Chief Justice Beverley McLachlin of the Supreme Court of Canada.  With the help of Fulbright and SSHRC Fellowships, she then attended Yale Law School where she focused on constitutional equality issues and welfare administration.  A past member of the Board of Parkdale Community Legal Services, Professor Lawrence has also provided expertise to the African Canadian Legal Clinic, the Women’s Legal Education and Action Fund (LEAF), and the Court Challenges Program.  She is the case comments editor of the Canadian Journal of Women and the Law.  Her work centers on questions of equality and includes examinations of the Supreme Court of Canada’s equality jurisprudence, the influence of feminism in Canadian law, sentencing regimes for ‘drug mules,’ diversity on the bench, and section 28 of the Charter.  She is the Director of the Institute for Feminist Legal Studies and the chair of the Academic Policy Committee.  She teaches first-year State and Citizen (constitutional and public law) as well as Perspective Option/upper-year seminars including Law, Gender, Equality.  Professor Lawrence runs a blog for the Institute for Feminist Legal Studies at http://ifls.osgoode.yorku.ca/ and is on Twitter as @OsgoodeIFLS.

 

Karin Mickelson is Associate Professor at The University of British Columbia, Faculty of Law. She has taught in the areas of international law, international environmental law, real property, environmental law and legal theory, and has supervised and co-supervised graduate students in a wide range of areas including international environmental law, international legal theory and international human rights. She has also served as the faculty advisor to UBC teams participating in the Jessup International Law Moot Court Competition.  Professor Mickelson’s research activities have focused on the South-North dimension of international law; for example, she has explored the possibility of identifying a distinctive Third World approach to international law in “Rhetoric and Rage: Third World Voices in International Legal Discourse” (1998) 16 Wisconsin International Law Journal 353-419, and has analyzed the failure of international environmental law to respond to the concerns of the South in “South, North, International Environmental Law, and International Environmental Lawyers” (2000) 11 Yearbook of International Environmental Law 52-81.  Her current research focuses on the impact of developing countries on the evolution of international environmental law. She is also a contributor to leading Canadian casebooks on international law and environmental law.

 

Usha Natarajan is an assistant professor in the Department of Law and the Center for Migration and Refugee Studies. She first joined AUC in 2010 as a visiting assistant professor of international law in the Department of Political Science.  Professor Natarajan has a multidisciplinary academic background, with a PhD in international law from the Australian National University, a MA in international law from the United Nations University of Peace, and an LLB (law) and a BA (art history) from Monash University. She has taught international law at the Australian National University, and worked with various international organizations including UNDP, UNESCO and the World Bank. She has worked with law initiatives in Asia, including Indonesia during its democratic transition, and in post-independence Timor Leste. Natarajan serves as a legal research fellow on human rights and poverty eradication at the Center for International Sustainable Development Law at McGill University. Recent publications include ‘Fairness and International Environmental Law from Below: Social Movements and Legal Transformation in India’ (2012) and ‘TWAIL & the Environment: The State of Nature, the Nature of the State and the Arab Spring’ (2012).

 

Pooja Parmar is the inaugural Catalyst Fellow and visiting professor at the Osgoode Hall Law School. She has recently completed PhD in law at the UBC Faculty of Law. The focus of her doctoral research was a dispute over groundwater that began with adivasi (indigenous) protests against a Coca-Cola plant in Kerala, India. Based on extensive legal, ethnographic and archival research, her dissertation explores how claims central to such disputes are inadequately understood.  Pooja received her LLM degree from UBC Law and her LLB degree from Panjab University in India. She has practiced law in New Delhi for several years, and has taught at UBC Law and Osgoode Hall.  Her research interests include legal pluralism, intersections of law and colonialism, indigeneity in a global context, human rights, law and development, and TWAIL. Her most recent paper titled ‘Undoing Historical Wrongs: Law and Indigeneity in India’ was published in the current issue of the Osgoode Hall Law Journal.

 

Sundhya Pahuja is a professor in the Melbourne Law School, University of Melbourne and the director of the Law and Development Research Programme at the Institute for International Law and the Humanities.  Pahuja’s scholarship is concerned with the relationship between international law and institutions and the question of global inequality. She researches, writes and teaches in the areas of law and development, international law, law and globalisation and legal theory.  Her work engages with the practice, and praxis, of international law and development through political philosophy, political-economy and postcolonial theories. She has worked as a research associate in international law and human rights at the EUI in Florence, practiced as a commercial lawyer, and for several years chaired the committee of management at the Darebin Community Legal Centre.  She is currently a member of the organising committee of the Legal Theory Interest group of the European Society of International Law and serves on the editorial boards of the Australian Feminist Law Journal * and the Law, Social Justice and Global Development Journal *(LGD) based at the University of Warwick.  Her latest book, Decolonizing International: Development, Economic Growth and the Politics of Universality, was awarded the American Society of International Law Certificate of Merit.

 

Dayna Nadine Scott is Associate Professor at Osgoode Hall Law School and the Faculty of Environmental Studies at York University. She joined York in 2006 after completing a SSHRC Post-Doctoral Fellowship at McGill’s Faculty of Law and a Hauser Global Research Fellowship at NYU. Professor Scott’s teaching is in administrative law, environmental law, risk regulation and international environmental governance. She recently completed a SSHRC-funded research project in partnership with environmental justice activists from the Aamjiwnaang First Nation, near Sarnia`s Chemical Valley, which tackled the issue of chronic pollution on an Ontario reserve. The project applied a critical, feminist perspective to the examination of law’s treatment of the “risks” of long-term, low-dose exposures to pollutants.  Professor Scott’s publications cover topics from international law’s “precautionary principle” and the regulation of toxic substances to the challenges posed for law and environmental health activism by the emerging endocrine disruption thesis.  She is interested in questions of environmental regulation and governance from an interdisciplinary perspective, especially work that interrogates the interaction between local and global modes of governing and ways of knowing.  The chapter, “Pollution and the Body Boundary: Exploring Scale, Gender and Remedy” appears in the recent volume, Feminist Perspectives on Tort Law, edited by Janice Richardson and Erica Rackley (Routledge, 2012).   Professor Scott is the editor of `Consuming` Chemicals: Law, Science and Policy for Women`s Health, forthcoming from UBC Press, and the Director of the National Network on Environments and Women`s Health. She is currently working on research related to the environmental justice implications of the pipeline decisions being contemplated by the National Energy Board.

 

Kate Sutherland is Associate Professor and Assistant Dean, First Year, at Osgoode Hall Law School.  She joined Osgoode’s faculty in 1998, and has taught law at the University of Saskatchewan. She has served as law clerk to Chief Justice Antonio Lamer of the Supreme Court of Canada, as well as Chief Justice E. D. Bayda of the Court of Appeal for Saskatchewan. Professor Sutherland is former Acting Director of the Centre for Constitutional Studies at the University of Alberta. She was the recipient of a Fulbright Fellowship in 1995 and the Law Society of Saskatchewan Gold Medal in 1989.  Professor Sutherland has written and presented in areas such as charter equality rights, sexual harassment, childhood sexual abuse, and tort law. She has served as editor or co-editor of several publications, including Review of Constitutional Studies, Constitutional Forum, Points of View, and Saskatchewan Law Review . Professor Sutherland has also written several literary pieces, including “The Necklace” in The New Quarterly , Winter (1997), Summer Reading: A Collection of Short Fiction (Saskatoon: Thistledown Press, 1995), and “Lucia” in Prairie Fire (1992).  Professor Sutherland’s community involvement has included her work for the Boston AIDS Care Project, University of Saskatchewan Women’s Centre, Her Story Calendar Collective, Saskatchewan Action Committee on the Status of Women, and the Saskatchewan Writers Guild.

Eric & Lola Roundtable (actually, let's call it Quebec v. A): Margot Young on Consent, sexism, ignorance and gender

 

All the posts in our Eric & Lola AKA  Quebec (Attorney General) v. A, 2013 SCC 5 roundtable can be found HERE.

 Thanks to Simon Fodden over at slaw.ca for the shout out for this roundtable – who knew that there were readers!

Sonia asked:  Can we read this case, and the reaction of the Supreme Court, as more or equally “a case about Quebec” than an “ordinary” Charter challenge, that is, a case which raises the federal principle?  Is Quebec’s divergent trajectory in terms of the prevalence of marriage and in terms of the development of legal regimes relevant?

“Après le jugement de la Cour suprême sur Eric et Lola, c’est comme si tout le monde s’était dit: «ouf», puis était retourné à ses occupations. “ 

(Guillaume Bourgault-Côté, Conjoints de fait – Eric et Lola n’ont pas éclairé les Québécois, Le Devoir, 21 mars 2013)

Margot Young

Photo Stream-003A recent conversation with Prof. Louise Langevin of Faculté de droit, Université Lavel provided these insights into the case.  First, to the point of consent and ignorance.  Despite widespread media coverage in Quebec about the issues and outcome of Quebec v A, it appears that the messages about the consequences of de facto intimate partnerships have yet to sink in.  A March 2013 study by the Quebec Chambre des notaries shows that the rights and obligations attendant upon separation by these couples remains badly understood.  Myths persist.  Many (46%) continue to belief incorrectly that after a number of years living together, they obtain the same legal status as married persons.  The study showed that 62% of the respondents believed that all goods acquired during the de facto relationship must be divided equally upon relationship breakdown. About 42% of the respondents did not know that if one partner is the sole owner of the family home, that home can be sold without the other partner’s consent.  Clearly, it is not the case that much meaningful consent to the situation in which A found herself is going on.  And, this argument about consent sits independent of larger concerns about gendered power that are also importantly a piece of the analysis of consent.

Second, to gender and sexism.  The origin of this nickname for this case, Eric v Lola, appears to have been a weekly Quebec news show.  I’m uncomfortable with the designation.  The name “Lola” packs gendered baggage, at least for Anglophones.  The popular music hall song “Whatever Lola Wants, Lola Gets” adds a particular and, I would argue, stereotypical and sexist flavour to A’s claims for support and property division.   Can’t find anything to account for the choice of “Eric”.  Anyone else?  Also, as a sidenote, the designation Eric v Lola isn’t much in circ

painting of Lola Montez

ulation out west.  When I first heard the reference, I panicked that I had somehow missed a significant equality case out of the SCC!

[Sonia:  I didn’t know the Whatever Lola Wants, Lola Gets song, the lyrics of which Margot provides below (Simon Fodden also referenced it),

although I think I’ve heard the Natacha Atlas version now that you mention it.  I only thought of the Kinks song (which also clearly racializes “Lola”, and involves dancing, but has a very different point) and a set of  stereotypes about Latinas as physically attractive seductresses which have a clear effect given the facts of this case.    None of which stopped me from gleefully adopting it  the ever present danger of trying to grab attention, which inevitably involves hooking on to tropes of what is interesting.  SEX!  Perhaps I need to treat this case as I try to treat  Canadian Foundation for Children, Youth and the Law v. Canada, [2004] 1 S.C.R. 76, which I will not call “the spanking case”, because of the way that turns the case name into the decision.]

Whatever Lola wants, Lola gets
And little man, little Lola wants you
Make up your mind to have (make up your mind to have)
No regrets (no regrets)
Recline yourself, resign yourself, you’re through

I always get what I aim for
And your heart and soul is what I came for
Whatever Lola wants (Lola wants), Lola gets (Lola gets)
Take off your coat, don’t you know you can’t win
(Can’t win, you’ll never, never win)
You’re no exception to the rule
I’m irresistable you fool
Give in (Give in, you’ll never win)

Whatever Lola wants, Lola gets

I always get what I aim for
And your heart and soul is what I came for
Whatever Lola wants (Lola wants), Lola gets (Lola gets)
Take off your coat, don’t you know you can’t win
(Can’t win, you’ll never, never win)
You’re no exception to the rule
I’m irresistable you fool
Give in (give in, you’ll never win)
Give in (give in, you’ll never win)
Give in.

 

Sonia asked:  Can we read this case, and the reaction of the Supreme Court, as more or equally “a case about Quebec” than an “ordinary” Charter challenge, that is, a case which raises the federal principle?  Is Quebec’s divergent trajectory in terms of the prevalence of marriage and in terms of the development of legal regimes relevant?

Robert Leckey

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This judgment can’t be fully understood without attention to its Quebec specificity. By that I mean not only the distinctive features of Quebec civil law’s regulation of the family, but also the Supreme Court justices’ sensitivity to the dynamics of provincial politics.

Hester wished there had been more account in the reasons of feminist organizing. Quebec feminism has unfolded differently than elsewhere in the country. Until recently, the Conseil du Statut de la Femme (http://www.csf.gouv.qc.ca/) opposed ascribing spousal status to unmarried cohabitants under the private law. I imagine that the judges were hesitant to overturn a regime on the basis of a rights claim that didn’t appear to be significantly supported by its principal beneficiaries. (There was just one intervener from Quebec in favour of finding unjustified discrimination, the Fédération des associations de familles monoparentales et recomposes du Québec (http://www.fafmrq.org/).)

Aware of the outrage occasioned by prior decisions upholding the Charter right to freedom of religion or to minority-language schooling, was the Chief Justice saving her powder, so to speak, for a claim advanced with obvious support from the vulnerable group in question?

I agree with Hester that the Chief Justice’s discussion under section 1 is unnerving. It’s not unprecedented to see political sensitivity to Quebec surface in section 1 analysis in a way for which the Oakes test didn’t prepare us. In a challenge to the federal government’s use of Quebec’s child-support guidelines for Divorce Act cases (http://www.canlii.org/en/qc/qccs/doc/2011/2011qccs2662/2011qccs2662.html, overruled by the Court of Appeal on the basis that there was no infringement of s. 15), the trial judge found a limitation of the right to equality. But she upheld it under section 1 on the basis of co-operative federalism (!).

Hester Lessard

I feel that this case is haunted by a number of issues – Québec’s distinctiveness, the relationship between federalism and Charter issues, and the weight to be given to democratic engagement in relation to the rights issues.   The story of legislative reform told by LeBel J., at great length, certainly amplifies the singularity of Québec’s history and approach.  However, I was interested to hear, in his earlier post, the comment by Robert (wearing his hat as a Québec family lawyer) that LeBel J.’s account overlooks the fact that “reading Québec family law as a whole, protecting individuals from the vulnerability arising from conjugality has outweighed choice for decades.”  It would seem, with such a rich historical and legislative record, that there are a number of ways to fashion the narrative.  LeBel J.’s reasons pursue a very clear thread in this complicated weave, highlighting the insistence, in 1973, of the Québec Conseil du Statut de la Femme that “choices” made by members of de facto unions should not be subject to legislative override but should be respected as the “true recognition of the equality and autonomy of individuals” (para 107).   The link between the story’s shape and LeBel J.’s conclusion that rights have not been violated is not made explicitly, yet it clearly facilitates his conclusion that there is no stereotyping or prejudice involved on the part of the Québec legislature, just respect for choice.

The Chief Justice, in contrast, is very explicit.  Her abrupt reversal of position at section 1 is couched in the language of deference to Québec.  She directly invokes federalism and the “federal values of distinctiveness, diversity and experimentation” as considerations in relation to the minimal impairment analysis.  I am uneasy with an approach that uses the “limitation on rights” role of section 1 to cement into place too simplistic an opposition between rights concerns, and diversity and democracy concerns.  Something is wrong with a picture that portrays women’s equality rights as violated, with devastating social and economic consequences, but that then invokes the democratic will to conclude that the violation is reasonable.   This analytical move seems to erase women’s voices from democratic deliberations, locating their concerns on the “rights” side of the equation, where they can speak only of their injuries and never of their claims as fully enfranchised members of a political community.  I would rather see the democratic engagement issue as a more explicit theme at both the rights analysis and limitation stages.  To this extent, I appreciate LeBel J.’s willingness to take up a lot of space with the historical details of legislative changes.  I would like, however, to see more evidence of competing stories.  As it stands, his account overshadows all others simply because of its length.  Are judges too quick to treat legislative history and political actions as mere background, a “blank” that someone must fill in before getting down to the real business of abstract, normative analysis?

More particularly, I would like to see more attention to feminist and women’s movement involvement with the nub of the rights issue.  I agree with Reva Siegel’s notion that social movements play a “jurisgenerative” role in relation to rights (“Jurisgenerative Role of Social Movements” found here).  She argues, albeit in the U.S. context,  that social movement interventions are not mere supplements to judicial deliberations but rather claims on constitutional meaning in their own right (“Text in Contest” at 299 found here).  This “jurisgenerative” role of social movements in shaping the content of rights protections was crucial in the Insite case (found here).  However, the intensity of grassroots political engagement around harm reduction approaches to addiction that led to the Insite litigation is only vaguely gestured at in the judicial reasons, and thus similarly “haunts” the decision.  I think we must confront this unhappy ghost and develop more inclusive, politically grounded conceptions of how meaning is given to rights.

 

Robert Leckey: May 28:   I think that Margot, by agreeing with LeBel J. (on one thing, at least), overstates the irony of Abella J.’s invocation of opting-out. Opting-in and opting-out are distinguishable from the perspective of someone skeptical of liberal ideas of choice. A consensual opting-out from inclusive default rules provides a moment at which the more powerful spouse must persuade the other to conclude a transaction, what the civil law calls a juridical act. In turn, there are legal tools for scrutinizing the integrity of the opting-out – not just the common law’s doctrines of duress, mistake, and unconscionability, but also more searching judicial review under some provinces’ family legislation. Or a rule that independent legal advice is strongly advisable. So there is at least a hook, in the law, for interrogating the conditions in which a “choice” was ostensibly made and given legal effect.

Margot Young: Robert’s comments here illustrate well the failure of judges other than those signed on to Justice Abella’s judgment to “open the box”—that is to unwrap the package of marriage law and reveal the reasons for the particular property and support protections mandated for married and civil status partners.  Justice Abella herself notes this—her analysis operates more substantively reflecting the social and economic reasoning that underpins the legislative regime.  And, then, her analysis nicely notes that this analysis pertains equally to those in relationships akin to Eric and Lola’s.

Robert also highlights the inconsistency in rationale across public and private law.  These sorts of inconsistency are revealing—often they signal the tip of a larger ideological iceberg. Here, one wonders about the gender, class, and social norms that inform Justice LeBel’s assumptions about the meaningfulness or the availability of choice in intimate relationships.  Indeed, Justice LeBel seems to understand the position that choice is not a meaningful gauge for relationship legitimacy as itself a harmful stereotype, one that his judgment proudly rejects.

We see in this case the persistence of legal liberalism, that is, a particular shaping of the “justice-worthy subject” and the preeminence of choice as agency-anchor and legitimator of social and political oppression.   In contrast,  “…a left political orientation begins with a…focus on the social powers producing and stratifying subjects that liberalism largely ignores.” (Wendy Brown and Janet Halley “Introduction” in Wendy Brown & Janet Halley, eds, Left Liberalism/Left Critique (Durham: Duke University Press, 2002) 1 at 6.)  For example, “male dominance”.

There is an irony to both sides in this case.  Justice Abella in rejecting the adequacy of consent, then relies on it to constitute her “opt out” scheme.  Justice LeBel points this out:

My colleague Abella J. adopts a position that would require these spouses to perform positive acts to opt out of a regime they did not intend to adopt. She would thus require them to exercise a freedom of choice whose validity and relevance she nonetheless denies in the context of opting for a particular form of conjugality. (para 261)

Choice is a distraction from the real question.

However, equally, Justice LeBel is subject to this same critique—only in mirror image.  He too accepts imposition regardless of consent for the obligations in marriage and civil unions.,  Yet, he denies its relevance to de facto couples, despite similar larger contexts.   It seems to me that the way out of this box is to look to the justice of the status quo that persists independent of consent for de facto couples for each scheme.  For LeBel, it is the unregulated but long (otherwise) acknowledged state of gendered unfairness.  For Justice Abella, it is the state regulated insistence on mutual property and support obligations as remediation of such gendered unfairness and disempowerment.  Choice is a distraction from the real question.

 

Margot Young’s comments respond to Robert Leckey’s post – which you can find either here, with all our other Eric & Lola posts, or below.

Robert Leckey:  Hester has nicely set out the different takes on choice (see below for Hester Lessard’s post). Wearing my hat as a Quebec family lawyer, what disappoints me is that the judges other than Abella J. signed onto accounts of choice that don’t square with the contested positive law.

LeBel J. accepts Quebec’s claim that protecting unmarried partners’ freedom of choice is its key aim. But reading Quebec family law as a whole, protecting individuals from the vulnerability arising from conjugality has outweighed choice for decades. That’s the only way of understanding the decision to shield married spouses’ sharing of the family home’s and pension plans’ gains during the marriage from contracting out.

Deschamps J. does better with her division, under section 1, between support and property. But the idea of conscious, acquisitive transactions fails to distinguish the “property” regimes from the concerns underlying support. The property regimes include measures protecting the family home, which I’ve argued elsewhere are alimentary in character.   And automatic pension or RRSP contributions off every paycheque or a home’s appreciation in value are hardly conscious transactions.

The key point about choice lies at private and public law’s intersection. Quebec already assimilates unmarried to married spouses for purposes such as taxation, workers’ compensation, public pensions, and welfare. Good or bad for a couple, there is no “opting out” from that treatment.

The unanswerable reason that excluding unmarried couples from the private law’s obligation of support is unjustifiably discriminatory is that public laws already claw back benefits on the irrebuttable presumption that cohabitants support one another (thanks on this point to Rod Macdonald).

If Quebec were serious about the justifications it advanced for its private law—preserving a zone of autonomy for informed, rational unmarried couples to shape their destinies—it would allow cohabitants to opt out from public law’s spousal designation.

 

 

Robert was responding to Hester’s post & my question, which are set out below:

 

 

HL:  Satisfactory?  Well, at least we get more choices about what the choice to tie the knot, or not, means.   

LeBel J. aligns the “knot, or not” choice with “personal autonomy and freedom,” (para 267).  This broad principle, we find out elsewhere, concerns the “freedom of those who wish to organize their patrimonial relationships outside the mandatory framework” (para 256).  The plural possessive is deceiving, for it is B.’s patrimonial relationship that gets “freely” organized.  It turns out that A. alone has made what is primarily a “marital status” choice, namely to live “with a spouse who refuses to marry,” a choice that, for LeBel J., is on a par with the choice of “a spouse who gives in to insistent demands to marry” (para 260).  LeBel J. concedes that the A.s of the world will likely end up in financially precarious positions when relationships end, but, he points out, each conjugal form has disadvantages for “one” of the spouses (para 242).  The marriage disadvantage presumably refers to those who, unlike B., cave to “insistent demands” and find they must submit to the protective regime.  And so, in LeBel J.’s judgment, choice language is the “ideological glue” (see H. Lessard Charter Gridlock:  Equality Formalism and Marriage Fundamentalism” in Sheila McIntyre and Sanda Rogers, Diminishing Returns:  Inequality and the Canadian Charter of Rights and Freedoms (LexisNexis 2006)291-316 at 316 – not available online, sorry!) binding the twin pillars of classical liberalism – formal equality and negative liberty – to a conception of conjugality and property rights rooted in a conservative and patriarchal tradition.

For Deschamps J., choice need not masquerade as liberal principle; rather it is, quite unapologetically, economic self-interest.  The purpose of the legislative protections (more precisely, the lack of protections for defacto spouses) is “to ensure the autonomy and fairness for couples who have been able to, or wanted to, accumulate property” (para 392).  Oh foolish A., for seeking to “bridal” this freedom!   Deschamps J. further explains that it makes sense to speak of decisions about property as “choices” because property acquisition, of necessity, involves a transactional moment, what she calls a “conscious act,” unlike “a plan to live together” that can evolve gradually into “a relationship of interdependence over which one of the parties has little or no control…” (para 393).  And preserving choice for the propertied by upholding the patrimonial protections would not compromise economic justice because Deschamps J. would remove A.’s exclusion from support remedies.

Abella J. seems aware of the treachery that choice language can wreak, locating it some distance from “principle” by relegating it to the status of legislative policy, and even then reluctantly (para 358).  When talking of conjugal relationships, she prefers the language of “mutual decision” (para 375), underscoring the fact that “knot, or not” choices involve a two way negotiation structured by inequality that is too often gendered.   Like all her other colleagues, she sees the ultimate choice at stake in terms of contractual freedom, but, for her alone, equality and economic justice should prevail without qualification.  A less impairing regime, she offers, would apply property and support provisions presumptively to all, allowing couples to “opt out.”   Bargaining for financial security would be thereby untethered from marital status, rendering conjugal “choice” less illusory (para 376).

McLachlin C.J.’s intervention is profoundly conflicted.   She embraces Abella J.’s view that marital status is emphatically not about choice and that the exclusions violate substantive equality, but then upholds the entire regime in the name of the public interest in a “state free zone” of private choice.  She rejects Abella J.’s less equality-impairing “opt out” alternative because it is more choice-impairing. Not even the “ideological glue” of choice language can hold this judgment together!

Question 3 

I feel that this case is haunted by a number of issues – Québec’s distinctiveness, the relationship between federalism and Charter issues, and the weight to be given to democratic engagement in relation to the rights issues.   The story of legislative reform told by LeBel J., at great length, certainly amplifies the singularity of Québec’s history and approach.  However, I was interested to hear, in his earlier post, the comment by Robert (wearing his hat as a Québec family lawyer) that LeBel J.’s account overlooks the fact that “reading Québec family law as a whole, protecting individuals from the vulnerability arising from conjugality has outweighed choice for decades.”  It would seem, with such a rich historical and legislative record, that there are a number of ways to fashion the narrative.  LeBel J.’s reasons pursue a very clear thread in this complicated weave, highlighting the insistence, in 1973, of the Québec Conseil du Statut de la Femme that “choices” made by members of de facto unions should not be subject to legislative override but should be respected as the “true recognition of the equality and autonomy of individuals” (para 107).   The link between the story’s shape and LeBel J.’s conclusion that rights have not been violated is not made explicitly, yet it clearly facilitates his conclusion that there is no stereotyping or prejudice involved on the part of the Québec legislature, just respect for choice.   

The Chief Justice, in contrast, is very explicit.  Her abrupt reversal of position at section 1 is couched in the language of deference to Québec.  She directly invokes federalism and the “federal values of distinctiveness, diversity and experimentation” as considerations in relation to the minimal impairment analysis.  I am uneasy with an approach that uses the “limitation on rights” role of section 1 to cement into place too simplistic an opposition between rights concerns, and diversity and democracy concerns.  Something is wrong with a picture that portrays women’s equality rights as violated, with devastating social and economic consequences, but that then invokes the democratic will to conclude that the violation is reasonable.   This analytical move seems to erase women’s voices from democratic deliberations, locating their concerns on the “rights” side of the equation, where they can speak only of their injuries and never of their claims as fully enfranchised members of a political community.  I would rather see the democratic engagement issue as a more explicit theme at both the rights analysis and limitation stages.  To this extent, I appreciate LeBel J.’s willingness to take up a lot of space with the historical details of legislative changes.  I would like, however, to see more evidence of competing stories.  As it stands, his account overshadows all others simply because of its length.  Are judges too quick to treat legislative history and political actions as mere background, a “blank” that someone must fill in before getting down to the real business of abstract, normative analysis? 

 More particularly, I would like to see more attention to feminist and women’s movement involvement with the nub of the rights issue.  I agree with Reva Siegel’s notion that social movements play a “jurisgenerative” role in relation to rights (“Jurisgenerative Role of Social Movements” found here).  She argues, albeit in the U.S. context,  that social movement interventions are not mere supplements to judicial deliberations but rather claims on constitutional meaning in their own right (“Text in Contest” at 299 found here).  This “jurisgenerative” role of social movements in shaping the content of rights protections was crucial in the Insite case (found here).  However, the intensity of grassroots political engagement around harm reduction approaches to addiction that led to the Insite litigation is only vaguely gestured at in the judicial reasons, and thus similarly “haunts” the decision.  I think we must confront this unhappy ghost and develop more inclusive, politically grounded conceptions of how meaning is given to rights.