New issue of the Canadian Journal of Women and the Law is out!
This issue honours the contributions of legal scholar Dianne Pothier, who is retiring after a distinguished career at the Schulich School of Law, Dalhousie University. Her faculty colleagues, Richard Devlin and Dean Kim Brooks, guest edit this issue which features ground-breaking scholarship on topics such as poverty and disability, disability and care, the treatment of ameliorative programs in court decisions, and barriers to women with mental disabilities testifying in court.
Editorial [This article is available open source & free of charge, Click here ]
Kim Brooks and Richard Devlin
Kim Brooks and Richard Devlin
Une analyse de la réglementation des personnes itinérantes selon une perspective pothienne de la discrimination
Suzanne Bouclin and Joëlle Pastora Sala
Dans cet article, nous nous appuierons sur les analyses critiques de Dianne Pothier concernant la discrimination et la dignité humaine pour établir ce que nous nommons la « perspective pothienne ». Notre objectif est de démontrer l’applicabilité de la perspective pothienne aux enjeux relatifs à la dignité des personnes itinérantes. Une analyse pothienne de l’adoption et des effets d’un règlement municipal—le Règlement sur la sollicitation obstructive de Winnipeg—nous permet de sonder la complexité des structures dans lesquelles les instances formelles créent ou renforcent des obstacles à l’épanouissement des personnes itinérantes. Entre autres, l’analyse pothienne complexifie la compréhension des dynamiques et des différentiations marginalisant les personnes itinérantes. Néanmoins, Pothier mise aussi sur la manière dont les personnes conçoivent divers moyens créatifs de composer avec leur réalité quotidienne en développant des tactiques pour maintenir leur dignité humaine malgré des expériences de discrimination. Son analyse apporte aux discussions sur le phénomène de l’itinérance à Winnipeg un éclairage original qui peut favoriser l’émergence de stratégies novatrices pour les groupes qui luttent contre la pauvreté.
More Than an Empty Gesture: Enabling Women with Mental Disabilities to Testify on a Promise to Tell the Truth
Janine Benedet, Isabel Grant
In this article, the authors use the recent Supreme Court of Canada decision in R. v DAI to examine the issue of competence to testify in sexual assault prosecutions for women with mental disabilities. The authors support the outcome reached by the majority of the Court but raise questions about some of the reasoning, including the equation of women with mental disabilities with children. The authors examine what types of questions are now appropriate in a competence inquiry and raise cautions with respect to the reliance on lay and expert witnesses to assist in the competency inquiry. It is argued that allowing women to testify who can communicate their evidence is a small step towards enabling the criminal justice system to respond to the high rate of sexual assault against women with mental disabilities.
The Supreme Court, Ameliorative Programs, and Disability: Not Getting It
Jonnette Watson Hamilton and Jennifer Koshan
Recent Supreme Court of Canada decisions on section 15(2) of the Canadian Charter of Rights and Freedoms raise concerns for the equality rights of persons with disabilities. Although R. v Kapp gave independent force to the protection of ameliorative programs as an aspect of substantive equality, Alberta (Aboriginal Affairs and Northern Development) v Cunningham gave governments significant deference even in relation to targeted benefit programs that are under-inclusive and potentially discriminatory. This article examines the impact of the Supreme Court of Canada’s recent section 15(2) jurisprudence on people with disabilities. We argue that the Court’s extreme deference to targeted benefit programs may perpetuate the social exclusion and marginalization of persons with disabilities to whom the government denies benefits. The Court’s section 15(2) approach also runs the risk of reinforcing essentialized, categorical, and medicalized views of disability and creating hierarchies of disability. These risks are of particular concern in the current climate of fiscal restraint. While the recent Supreme Court of Canada decisions on section 15(2) do not deal specifically with issues of discrimination on the basis of disability, we argue that the Court’s apparent failure to think through how its decisions would impact people with disabilities is a serious shortcoming indicative of Pothier and Devlin’s notion of “dis-citizenship.”
Vulnerability, for Example: Disability Theory as Extraordinary Demand
This article considers the function of analogy and example in interdisciplinary disability theory, taking vulnerability as an extended example of the shared concerns and the contrasting demands of disability studies and feminist theory. It centres a politicized disabled subjectivity and considers the interplay of the universal and the particular in the operation, or function, of disability as a category. The first section of the article, “Examples, Analogies,” presents theories of example and analogy and relates them to strategies of example and analogy in disability studies and in feminist theory, particularly in the work of Robert McRuer, Rosemarie Garland-Thomson, Joan W. Scott, and G. Thomas Couser. The second section, “Translation into Politics,” considers Debra Bergoffen’s discussion of vulnerability and the gendered universal as well as the possibility of its translation into disability theory. The third section, “Vulnerable Subjects,” discusses Judith Butler’s articulation of vulnerable subjectivity and Martha Fineman’s notion of the vulnerable subject. The fourth section, “More Vulnerable Subjects?” shifts to the particular with a reading of Sherene Razack’s argument that feminist law reform must recognize disability’s specific difference and of Couser’s and Paul Longmore’s examples of the particular operation of vulnerability in disability experience.
Disability and Care: Still Not “Getting It”
Nancy Hansen and Lorna Turnbull
In this article, the authors, one a critical disability studies scholar and the other a legal academic, critically consider a decision of the Federal Court of Appeal that engages questions of gender and disability. The case deals with access to Canada Pension Plan (CPP) disability benefits. Cynthia Harris, a mother who has multiple sclerosis, challenged the application of the CPP child-rearing drop-out rules contained in the legislation. Harris’s challenge is made on the basis that her child’s disability required parental care for a longer period of time than would be required for a non-disabled child. The authors critique the different approaches to understanding equality and its application to issues of disability and gender. Particular attention is paid to the manner in which workforce attachment tests in social benefit legislation have an impact on women and, in particular, on women with disabilities. The formalistic approach to, and understanding of, equality, coupled with the absence of an intersectionality analysis in the judgment, is considered. Systemic rather than individualized responses are required to properly accommodate equality seekers. The authors argue that a theoretical approach that places inclusion and social citizenship at its core is how such equality claims should be approached.
“I Wish the Supreme Court Thought More Like Dianne”: A Comment on Krangle v Brisco
Darcy L. MacPherson
The author begins by detailing his experiences with Dianne Pothier as law professor and mentor. He then turns to the Supreme Court of Canada’s decision in Krangle v Brisco, which centred on the alleged obligation of a negligent doctor to pay for the adult care of a child who had been injured by that negligence. There were two complicating factors. First, there was a government in place at the time of the suit that would cover these adult-care costs. Second, the child was only ten years old at the time of the Supreme Court of Canada hearing. Would the government continue to offer the program throughout the life of the child? The Court dealt with these issues through a contingency. The author argues that a better solution exists. While he agrees with the Court that the government should take responsibility for the care of disabled adults, there is no constitutional imperative to do so. Someone (the parents or the government) is going to be paying the more than $1.5 million that is not included in the damage award. The use of a trust would prevent a windfall to the parents while ensuring that the defendant doctor paid for the full amount of damage caused. The two payees of this trust would be the government and the parents—either of these parties could be reimbursed by the trust. In the view of the author, this solution is consistent with prior Supreme Court of Canada case law on damages. Pothier would have taken a broader view of how to achieve the social goals that the Court says are important. The author hopes that the next time the opportunity arises, the Supreme Court of Canada will follow her lead.
The Case for the Federation of Law Societies Rejecting Trinity Western University’s Proposed Law Degree Program
Trinity Western University (TWU), a private Christian school in British Columbia is posed to become Canada’s first Christian law school. Trinity Western discriminates on the basis of sexual orientation in both its hiring and admissions policies. It has also been found to violate academic freedom. Institutions with discriminatory policies that are antithetical to fundamental legal values are not competent providers of legal education. The Federation of Law Societies of Canada, the national coordinating body for Canada’s fourteen law societies, should not approve programs from institutions with discriminatory policies. A decision not to approve TWU’s application would survive a court challenge by TWU. The legal framework within which a decision of the Federation would be judicially reviewed has changed since the Supreme Court of Canada ruled in favour of Trinity Western in Trinity Western v B.C. College of Teachers. The Federation’s decision would be reviewed on a standard of reasonableness rather than correctness. Based on the Federation’s mission, mandate, and current academic requirements, a decision to deny TWU’s application would be upheld as reasonable by the courts. TWU should be free to pursue research and education in a manner in keeping with its religious commitments. TWU should not be permitted to impose upon the public a religiously grounded program that is incompetent to deliver a legal education consistent with what the regulators of the law profession in Canada have identified as necessary to protect the public.
Founded in 1985, the same year as the equality guarantee of the Canadian Charter of Rights and Freedoms came into force, the Canadian Journal of Women and the Law has been publishing ground-breaking, multi-disciplinary scholarship on the impact of law on women’s social, economic and legal status for twenty-five years.
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