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60 Cards in this Set
- Front
- Back
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6 Strands of Feminist Legal Theory |
- Liberal Feminism - Dominance Feminism - Cultural Feminism - Intersectional Feminism - Autonomy Feminism - Postmodern Feminism |
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Liberal Feminism |
- Individual rights and choices' - Targeting laws that treated men and women differently - Quest for 'gender-blind' law - Formal Equality (instead of substantive equality) - Enemy = Difference - Major figure: Gloria Steinem |
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Dominance Feminism |
- Focus on difference in power between men and women - Not individual rights but robust protection law - Sexual harassment and assault NOT about sex (instead about power-- ensuring male dominance through humiliation) - Enemy = Subordination - Major figure: Catharine MacKinnon |
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Cultural Feminism |
- Women's voices - Feminine characteristics =/= bad things - Equality =/= making women like men but allowing women to be themselves - Not as evident in law - Enemy = Devaluation - Major figure: Jane Addams |
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Intersectional Feminism |
- Intersection of different ideas and forms of oppression - Social justice - "Women & Minorities" (What about women minorities?) - Anti-discrimination law = bad with overlapping oppressions - Enemy = Essentialism (false universalism and reducing all issues to gender) - Major figure: Kimberlé Crenshaw |
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Autonomy Feminism |
- Sex positive / pro-sex feminism - Critical of Catherine Mackinnon and Dominance Feminism - Women's pleasure as a political/legal issue (Consent law? Polygamy?) - Enemy = Victimization (Infantalizing instead of empowering women, "perfect victims" and "survivors," one person's victim is another's oppressor - Major figure: Gayle Rubin |
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Postmodern Feminism |
- "Performative Identity" (how do we show/understand our gender, race, sexuality, etc.?) - Critical of constructions like "man" and "woman" - Move away from "women" as the centre of advocacy (social justice) - Enemy = Normalization (don't change yourself to fit the mould, change the mould to fit you) - Major figure: Judith Butler |
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Bliss v. Attorney-General of Canada (1979) |
- Stella Bliss fired when pregnant - As a woman, qualified for only maternity benefits and not unemployment coverage - But she hadn't worked long enough to get maternity benefits - Argued it was sex discrimination - Lost at SCC |
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Brooks v. Canada Safeway (1989) |
- Susan Brooks, pregnant - Alleged sex discrimination under Manitoba Human Rights Act - Employer provided 67% of previous salary for disability, 60% for general unemployment - Pregnancy = reason for unemployment, not "disability" - SCC said Bliss precedent was wrong, called this sex discrimination |
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Section 1 of the Charter of Rights & Freedoms |
- Reasonable limits - Justified in a free and democratic society - Eg. limit on hate speech |
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Section 7 of the Charter of Rights & Freedoms |
Life, liberty and security of the person |
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Section 11 of the Charter of Rights & Freedoms |
- Right to a fair trial - Innocent until proven guilty |
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Section 15 of the Charter of Rights & Freedoms |
"Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." |
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Section 28 of the Charter of Rights & Freedoms |
- Male and female persons - Added due to multiculturalism concerns - Mostly redundant and ignored by courts |
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Battles for Equality: Reproduction |
- R. v. Morgentaler - Should have engaged section 15 or 28... actually engaged section 7 |
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Battles for Equality: Violence Against Women |
- R. v. Shearing - Engaged section 11, 15 and 28 |
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Battles for Equality: Family Law |
- M. v. H. - Engaged section 7 and 28 |
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Battle for Equality: Employment |
- McKinney v. University of Guelph - Schachter v. Canada - Engaged section 15 in both cases |
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Battles for Equality: Socio-Economic Claims |
- Symes v. Canada - Should have engaged section 15 |
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Strategy of LEAF |
- Legal Action and Education Fund - Law = resistant to change (sometimes good, sometimes bad) - Law = expression of powerful interests (Who makes our law? But its not JUST that) - Using the master's tools to dismantle the master's house - Problem: legal writing and procedure impose constraints |
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Strategy of LEAF: 1980s vs 1990s + |
- MacKinnon: dominance feminism --- Reduces all subordination to gender --- Ignores other forms of oppression - Adopting a "Cixousian" approach = attempt to move forward |
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EGALE |
Equality for Gays and Lesbians Everywhere (Also Equal in French) |
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NAWL |
National Association for Women and the Law |
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Mossop v. Canada (1993) |
- Brian Mossop, translator for federal gov't - Denied bereavement leave for same-sex partner's father's funeral (not his "family") - Alleged discrimination ("family status" in Canadian Human Rights Act) - HR Tribunal - Yes discrimination occurred (should have family status) - Federal Court of Appeal - Yes discrimination occurred (no it's not "family status... Ruled against Mossop) - Appealed to SCC ("Family" has multiple meanings) - SCC majority endorsed FCA's reasoning - Dissent (L'Heureux Dube) agreed there should be a diverse definition of family |
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Vriend v. Alberta (1998) |
- Delwin Vriend, lab coordinator at fundamentalist Christian school - 1990: asked if gay, yes - 1991: college adopted policy against "homosexual lifestyle" (Vriend asked to resign... Fired) - Lodged complaint with Alberta Human Rights Commission - HR Commission: sexual orientation not protected under Individual Rights Protection Act (IRPA) - Applied for declaratory relief (Gov't legislation violation Charter) - Court of Queen's Bench: Yes - Court of Appeal: No (Dissent) - SCC: Unanimously sided w/ Vriend (concurring decisions, one partial dissent) - Concurrence: Section 15 applie but not because of ruling in Egan (Not about "sexual orientation" but "social vulnerability") - LEAF intervened because they had a history of not caring about intersectionality |
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Civil Marriage Act (2005) - Department of Justice |
1. Keep opposite-sex definition of marriage 2. Expand definition of marriage (same-sex couples) 3. Abolish marriage as legal category |
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Civil Marriage Act (2005) - EGALE |
- Formal equality - Fairness - "Choice" to marry (ignores social conditions that create "choice") - Anecdotes |
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Civil Marriage Act (2005) - NAWL / LEAF |
- Marriage =/= great for women (gendered inequality of hetero marriage -- breadwinner & homemaker) - Privatizing costs of social reproduction - Shaking up definition of marriage (gov'ts responsibility for daycare, etc.) - LEAF argument misconstrued by social conservatives |
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Civil Marriage Act (2005) - Radicals |
- Gary Kinsman --- Abolition of state-sanctioned marriage (inherent discrimination) - Confused committee |
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Civil Marriage Act (2005) - Outcome |
- 2004, SCC OK'd same-sex marriage - 2005, gov't legalized same-sex marriage - Society still in tact "but at what cost?!" (< satire) |
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Section 2 of the Charter of Rights & Freedoms |
Outlines "fundamental freedoms" for Canadian citizens and corporations |
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Section 12 of the Charter of Rights & Freedoms |
"a legal rights section that protects an individual's freedom from cruel and unusual punishments in Canada" |
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How to Read a Court Report |
Practice this |
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R. v. Lavallee - Material Facts |
- Kevin Rust: past of abuse with partner Lyn Lavallee - During a party in their home, they have a fight upstairs, Rust assaults Lavallee and threatens her - While he's turned she shoots twice and he dies |
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R. v. Lavallee - Trial & Appeal |
- Lavallee charged with murder
- Acquitted under the grounds of self-defence and "expert evidence" (ie. battered spouse syndrome by Dr. Shane) - Crown wanted Shane's testimony withdrawn (based on hearsay) - Judge denied crown's application and instructed jury how to handle Shane's testimony - Jury acquits Lavallee |
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R. v. Lavallee - SCC Decision |
- Trial judge = right to start with - Expert evidence shows an explanation for Lavallee's actions - Jury =/= unencumbered by myths of "why she stayed" |
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R. v. Lavallee - Aftermath |
- Good for like judicial education that the dr.'s testimony was accepted - But there weren't a wave of acquittals after her case - This suggests that there is too high a standard for women in these situations. - Perfect victim (so like what about women who experience emotional abuse, yada, yada, yada) |
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Jury of Her Peers |
- Woman only suspect of husbands murder - Town's women find out that her reason for killing him was an abusive relationship - Take away: abuse =/= justification for murder, battered spouse syndrome =/= automatic acquittal, valid legal norms require possibility of considering everyone's perspective |
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Criminal Code re: Sexual Assault |
- 3 relevant provisions --- Section 265: defining assault (without consent, someone applies force to you, someone attempts or threatens this, while displaying a weapon someone accosts or impedes you) --- Section 273.1: defines what doesn't count as consent (if the individual is incapable of consenting, if the individual expresses lack of agreement to engage or continue engaging) --- Section 273.2: limits when an accused can claim "honest mistake" (intoxication, recklessness/willful blindness, not taking reasonable steps to ascertain consent) - R. v. Ewanchuck as implied precedent (invited young woman into trailer -- repeated sexual touchings and repeated refusals -- acquitted) |
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R. v. JA - Material Facts |
- KD & JA = common-law spouses - Consensual kissing and foreplay turned to erotic asphyxiation causing KD to lose consciousness - Anally penetrated - Regained consciousness and JA withdrew sex toy -- continued to have consensual vaginal sex - Released from bonds right after |
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R. v. JA - Levels of Court Decisions |
- Trial Court: JA not guilty of aggravated assault or assault causing bodily harm, guilty of breaching probation order and of sexual assault (definition of consent requires consciousness) - Ontario Court of Appeal --- Majority: prior consent = sufficient, JA acquitted --- Dissent: Consent requires active mind in the moment (Ewanchuk precedent) |
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R. v. JA - SCC Majority vs. Dissent |
- Majority
--- Endorsement of dissent in OCA --- Criminal Code: no consent if individual is not capable of giving it & consent revocable at any time --- Ewanchuk + Criminal Code = consent as conscious, revocable and given in the moment - Dissent --- "No means no" AND "Yes means yes" --- Sexual activity involving unconsciousness is consensual in fact but not in law --- Unconscious person cannot consent but can they consent in advance? --- S 273.2 "consented" and "was consenting" --- Policy considerations: sexual freedom --- Infantilizing & robbing us of sexual agency? - MAJORITY: APPEAL ALLOWED, GUILTY VERDICT RESTORED, DISSENT: WANTED APPEAL DISMISSED AND ACQUITTAL RESTORED |
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R. v. JA - Implications |
Is sexual assault law protecting or controlling us? |
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Obscenity Law |
- Criminal Code of Canada S. 163 - 1&2: crime to publish, sell or advertise obscene material - 8: undue exploitation of sex = obscene |
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Obscenity Law & The Charter |
- S. 2: Fundamental freedoms (Subsection B: Freedom of expression) - S. 1: Allows courts to decide when Charter rights can be limited (justifiable limits, free & democratic society) |
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R. v. Butler SCC Ruling |
- Does s. 163 of CC violate s. 2b of the Charter? - If so, can s. 162 of the CC be justified under s. 1 as a limit on s. 2b? - Majority: Sopinka J - First step = defining s. 163 (3 tests to determine obscenity) - Community standards test: is the material something community would tolerate? answer will change with time but not with place (limited usefulness, abstract & immeasurable concept) - CONCLUSION: yes s. 163 of CC is protected by s. 2 of Charter but yes, s. 1 of Charter allows s. 163 of CC as reasonable limit on s. 2 - Ordered new trial - Concurrence: Gonthier & L'Heureux Dube, Moral legislation=ok, "medium is the message" |
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WEEK 10 DOCUMENTARY? |
??? |
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R. v. Morgentaler - Background Info |
- Morgentaler (previously served jail time) + 2 other Drs open abortion clinic in Toronto - Criminal Code s. 251: performing aborton and seeking abornal = illegal unless under qualified abortion committee - Morgentaler + others charged under s. 251 of CC - Counter-argument, s. 251 of CC = unconstitutional |
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R. v. Morgentaler - Charter Engagement (Different Judges) |
- Charter: s.2a - freedom of conscience, s. 7 - safety and security of the person, s. 12 - freedom from cruel and unusual treatment - S. 251 of CC = infringement on women's s. 7 charter rights - Reasonable limit under s. 1? No - S. 251 of CC = disproportionate (gov't overstepping its bounds) - Need to balance gov't interest w/ women's s.7 rights - Wilson J: S. 251 also infringes on s.2 - Dissent: McIntyre & LaForest - Charter =/= unlimited power for courts (no "right to abortion") |
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XY v. Ontario (Government and Consumer Services) |
- XY assigned male at birth, living full time as a woman and wants female birth certificate - Undergone some surgeries in order to qualify HOWEVER launched a lawsuit against ON gov't (Vital Statistics Act req'd surgery) - XY argued the act is discriminatory according to ON Human Rights Code ss. 1 & 11 (basis of sex & disability) - Adjudicator: yes this is an undue burden on trans people & discrimination on basis of sex - Limitations: low level of court system, ON gov't later amended code, did not engage charter |
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CF v. Alberta (Vital Statistics) |
- Similar to XY v. Ontario except took place in Alberta, CF had no surgeries, CF made a Charter s. 15 claim - Court of Queen's Bench --- Judge: yes this is discrim. on basis of sex, even if not "trans status" = analgous ground, declared offending section of VSA invalid, ordered that CF be granted a new birth certification --- Limitation: lowest level of court (no precedent), Alberta gov't amended legislation |
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Bill C-16: An Act to Amend the Canadian Human Rights Act and the Criminal Code |
- Amendments: --- CHRA adds "gender identity" and "gender expression" to protected grounds --- Criminal Code adds that crimes against "gender identity" and "gender expression" = forms of hate crime --- Not just protection for trans people - Limitations --- CHRA =/= Charter - lacks same force re gov't actions but can protect people at national level --- Does s. 15 of Charter protect trans people? - Peterson's Objections --- Bill C-16 = infringement on Charter s. 2 (unfounded claim) --- U of T employee already subject to ON Human Rights Code --- Hate speech = incitement to violence (you are still free to criticize trans people and trans rights) |
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Currah's Trans Rights Imaginary |
- Gender = social construction - Gov't documents and controls sex designation - Trans community comes in all shapes n forms - Medical model: "gender identity disorder, hormones, surgeries, etc. - Criticism: making trans people seem sick? Too binary? - HOWEVER some trans people need/want the medical model |
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Bertha Wilson - Main Points |
- Scottish - 1st woman on SCC --- Retired at 75 (everyone must) - Famous decisions: Andrews v. Law Society of BC, R. v. Morgentaler, R. v. Lavallee |
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Bertha Wilson - Will Women Judges Make a Difference? |
- Not too optimistic - Presence of women does shatter stereotypes - Having women on bench changes atmosphere (less harassment) - Judicial Impartiality and independence --- Judicial activism > no --- Redefining impartiality > yes --- Belief in impartiality leaves biases unchecked --- Women judges bring change by calling on experience |
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Bertha Wilson - Pyrrhic Victory |
- Would be pyrrhic victory if change only came because more women on bench > can't just replace men's biases with women's - Goal =/= winning one equality battle but winning the war for social change - Brining ethics of care to judging through continued judicial education |
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Claire L'Heureux Dube - Main Points |
- Quebec - Known as feminist judge - Conflicted legacy: tale of 2 charters - Fine w/ Charter of Values - Muslim women & hijabs -- intersectionality fail |
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Claire L'Heureux Dube - Will Women Judges Make a Difference? |
- Understand women are not homogenous group - Pyrrhic victory --- Why wait for new generation? --- Sensitize women & men judges to gender & other differences --- Burden of education - don't place on backs of marginalized --- Representative bench > being able to conceptually represent diverse interests |
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Beverly McLachlin - Main Points |
- Longest sitting Chief Justice in history - Equality --- Judges need to take into account realities of marginalized people --- Acknowledge its real but can't solve problem in court room |
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Beverly McLachlin - Limitations |
- Critiques of charter: good for identity claims but not for socioeconomic claims - Pyrrhic Victory --- Lawyers and judges should educated themselves |
