The Person’s Case, in Carissma Mathen’s “Courts without Cases: The Law and Politics of Advisory Opinions” (Hart 2019)

You can find the book for order here, and check Carissima on Twitter @cmathen in case she’s doing a launch event that you can get to (Winter Semester, Osgoode). If you are on twitter and don’t follow her, recommend that you do, for live tweeting all kinds of things, for instant digests of SCC new releases, for fun. Oh, and if you want the JCPC Person’s case itself, here it is on Canlii.

(excerpt from Chapter 7 “Interpretation and Rights” with thanks to Carissima)

It took time for the Persons Case to make its mark. [A]side from a few other Privy Council decisions, it went virtually unmentioned until 1979.  In its own time, academic discussion of the reference was uniformly negative.  British scholar Berriedale Keith said that ‘no decision of the Privy Council is probably harder to defend as sound in law ’.  GF Henderson was equally cutting, charging that the case was ‘not written in strict accordance with well understood legal principles ’; that the federal government had manipulated the situation to secure its preferred outcome; and that the JCPC had by ‘ judicial legislation … altered the constitution of the Senate of Canada ’.

More positive regard began to emerge in the 1970s, a time of greater awareness of women’s rights and an increasing role for feminist advocacy. After being mentioned in some early Charter decisions, Edwards quickly assumed more prominence. The reference enjoyed an intriguing duality. It was used to chart a different path to constitutional interpretation compared to the more formalist approach of the Supreme Court of the 1970s. At the same time, being so deeply rooted in the country ’s legal history, it may have rendered the Court ’s momentous interpretative choices, a number of which are explored later in this chapter, less radical.

The critiques of the Persons Case are reminiscent of the debates in the United States over the soundness of the Brown v Board of Education (Topeka) landmark decision.  Although it is possible to legitimately object to the judicial craft in each, and many commentators do, few take the next step and claim that the decision should be cast aside.  In Canada, such a position would be repudiated by all but the most implacable defenders of constitutional minimalism.  The hesitation to fully back the implications of such a critique illustrates the opinion’s power. For, while the reference may attract debate over its precise contours, and future applications, there is in almost all quarters an acceptance of its legacy and continuing force.”

Have you or your colleagues got New In Print academic/legal work that could be featured here? Let me know via email.

Stereotyping & Deaths of Indigenous women in Police Custody (Tanya Day & Debra Chrisjohn)

Here is a pdf of the decision in R v Doering, in which Justice Pomerance convicts a police officer of (inter alia) criminal negligence causing the death of Debra Chrisjohn, a woman “of indigenous heritage” who died in London, Ontario, while in police custody. Ms. Chrisjohn died September 7 2016, of a heart attack.

Reading the media/social media reports of what happened to Ms. Chrisjohn (here; here) put me in mind of media reports about the Inquest into the death of Tanya Day, a Yorta Yorta woman who died in Castlemaine Police Station nr Melbourne December 22 2017. For a review see here. The Inquest took place this past August – I read coverage in the Guardian by Calla Wahlquist @callapilla in the Guardian (eg, this).

The decision of Justice Pomerance is highly critical of the police response. She also, in one of the last paragraphs, notes:

[129] Finally, Ms. Chrisjohn was of indigenous heritage. There is no suggestion that this played any role in decisions made by the police in this case. Nonetheless, it has been observed that indigenous women and girls are particularly vulnerable to stereotyping. This includes stereotypes relating to alcohol and drug abuse. (see the Report of the National Inquiry into Missing and Murdered Indigenous Woman and Girls (Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls).. On this point, see also R. v. Barton, 2019 SCC 33.

Thanks to Kate Kehoe (@katekehoe1) who i have followed forever but never met, for reaching out and sending the judgment (which isn’t on CANLII yet).

As many of you know, there are so many scholars who have recognized the connections between police relations with Indigenous peoples in different settler-colonial states. The deaths of Ms. Chrisjohn, and Ms. Day, do illustrate that connection, the hard work that families, advocates and communities are doing to speak out, to mourn, bring these things to mainstream attention, to use law to demand accountability. So just…thinking transnationally.


Aziza Ahmed at Osgoode Thurs November 14 |FEMINISM’S MEDICINE: Risk, Race, Gender, and Law in the AIDS Epidemic

Poster for the Department of Health and Human Services demonstration designed by ACT UP/DC Women’s Committee, 1990.

THURSDAY 14 November 2019 1230PM Osgoode Hall Law School IKB 2027 (Faculty Lounge)

Lunch Served

How did the world come to see women as “at risk” for HIV? How did a disease of men come to kill women? Against a linear narrative of scientific discovery and progress, Feminism’s Medicine argues that it was women’s rights lawyers and activists that fundamentally altered the legal and scientific response to the epidemic by changing core conceptions of who was at risk of contracting HIV.  In other words, feminists not only changed the legal governance of AIDS, they altered the scientific trajectory of the epidemic.  In doing so, they moved resources towards women in the epidemic.  Feminists advocated for women to be seen as a risk group for HIV in multiple locations: in U.S. administrative agencies, courthouses across the country, as well as in global governance institutions. The talk will consider the impact of a diverse range of feminisms for its impact on scientific ideas, legal reform agendas, and the distributional consequences of feminist engagement in the AIDS epidemic. 

Aziza Ahmed is Associate Professor of Law at Northeastern School of Law. She is an expert in health law, human rights, property law, international law, and development. Her interdisciplinary scholarship focuses on issues of both domestic and international law. Join the IFLS for this talk.

A few recent or forthcoming publications from Professor Ahmed

  • Handbook on Race, Racism, and the Law (Edward Elgar Publishing, forthcoming) (with Guy-Uriel Charles).
  • Gender Violence (forthcoming) (with Donna Coker, Leigh Goodmark, and Deborah Weisman).
  • “Forensic Science in Self-Induced Abortion Prosecutions,” Boston University Law Review (forthcoming 2019)
  • “Health and Human Rights: Harm-Reduction and the Fight to Decriminalize Public Health Services,” American Society of International Law Proceedings (forthcoming 2019). 
  • “Race and Assisted Reproduction: Implications for Public Health,” 86 Fordham Law Review 2811 (2018). 

Professor Vasuki Nesiah “Is gender sensitive transitional justice the feminism we were aiming for?” October 18 2019 at Osgoode

Is gender sensitive transitional justice the feminism we were aiming for?

Professor Vasuki Nesiah, Gallatin School NYU


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co presented with Law Arts Culture .

“From Rigobertu Menchu to Anne Frank, the testimonials of women and girls are often seen to have particular authority in ‘speaking truth to power’ and bearing witness to vulnerable communities’ experience of genocidal violence and their fortitude in resistance. Feminist celebration of ‘narrative truth’ has rendered truth commissions a particularly important site of feminist engagement.

At the same time, feminist analysis of the politics of knowledge and their mobilization in the commission of truth has drawn attention to the fraught stakes of categories such as victimhood, voice and injury. This talk will engage in the debate by thinking with Paulina in Ariel Dorfman’s play, Death and the Maiden.

New in Print: Hastie, Workplace Sexual Harassment (report)

Bethany Hastie of Allard (UBC) Law has just published Workplace Sexual Harassment: Assessing the Effectiveness of Human Rights Law in Canada (available here, open access). Hastie analyzes decisions in workplace sexual harassment at each of the BC and Ontario Human Rights Tribunals from 2000-2018. She’s particularly focused on “whether, and to what extent, gender-based stereotypes and myths known to occur in criminal justice proceedings arise in the human rights context”.

For instance, one finding: “the requirement that a complainant establish that the impugned conduct was “unwelcome” provides the most direct and expansive space for gender-based myths and stereotypes to influence the analysis and outcome of sexual harassment complaints”.

The Report concludes with 8 recommendations. An important resource.