Some incidents of male violence against women and girls (MVAWG) could be recognized as sex-motivated hate crimes. Often, however, crimes of male violence are neither treated as hate crimes nor reported as sex-motivated. This article examines sex-motivated hate, and the violence that results from sex-motivated hate in Canada, to explore its absolute and relative visibility. Sex is included as a targeted social group in hate crime laws in Canada. We consider whether and how sex is reflected in crime reporting data, sentencing, and public discourse. We demonstrate that violence motivated by sex is rarely identified as hate crime by legal actors tasked with enforcing and implementing criminal offence and sentencing provisions. We conclude by providing steps that could be taken to ensure sex-motivated hate, including sex-motivated violence, is recognized as a form of hate like other more commonly recognized targeted groups going forward.
This article examines the Supreme Court of Canada’s decision in R. v Kirkpatrick, a pivotal case where the court grappled with answering the tired, yet age old, question: what is consent. Here, the accused surreptitiously removed a condom before sexual intercourse despite the sex being conditioned on his condom use. In its decision, the majority sidestepped a harmful precedent set in R. v Hutchinson, which placed condom use under the fraud provision of the newly adopted consent test from the same case. While the majority’s decision was welcome, I criticize the Court for not going far enough. The majority failed to reverse the Hutchinson precedent, failed to denounce the fraud provision as an illegitimate marker of consent, and failed to grapple with the realities of sex. The majority missed the notion that, when a person removes a condom during sex, they have changed the sexual act and thus require fresh consent, regardless of whether there was an agreement beforehand. While the majority’s decision is a step in the right direction in sexual assault cases, it was not the leap forward that women need to feel fully protected by the law.
The Supreme Court of Canada recently ruled on R. v Kirkpatrick, a case that raises many complex questions regarding consent and sexual violence in Canada. Despite the complainant stating that she would only have sexual intercourse with Ross Kirkpatrick with a condom, Kirkpatrick chose not to wear one, and he was charged with sexual assault. While at trial, it was found that the complainant consented to the sexual activity, and the BC Court of Appeal subsequently disagreed with that finding. Ultimately, the Supreme Court of Canada held that, when both parties agree to use a condom, the removal of the condom by one party is not consensual and constitutes sexual assault. In this commentary, we discuss how this case highlights the murky circumstances of consent in Canada, with particular attention to the growing phenomenon of “stealthing.” We lay out the key jurisprudence leading up to Kirkpatrick—namely, R. v Hutchinson and R. v Mabior. Then, we outline the state of the framework on consent in Canada, and we critique the legal tests for vitiating consent through fraud. We conclude that the definition of sexual activity to which an individual consents must consider essential conditions such as condom use.
In this article, the authors draw on feminist perspectives to critique the several ways in which benefit agreements between proponents and Indigenous communities address the unique socio-economic impacts experienced by Indigenous women. They argue that current contractual practices often overlook or inadequately address the specific needs of Indigenous women, focusing instead on more generalized mitigation measures. The study compares standard clauses in benefit agreements that predominantly address economic impacts like wage-based income, business revenue, and community income, with the multifaceted and diverse impacts specifically affecting Indigenous women. By doing so, the authors advocate for a broader contractual analysis that moves beyond discretized assessments of resource development, aiming for a deeper understanding of the diverse socio-economic effects precipitated by economic change.
Thirty-five years on, the exact holding of R. v Morgentaler remains contested. Two of the majority decisions—those authored by Justice Jean Beetz and by Chief Justice Brian Dickson—are often read as “procedural” decisions that do not provide substantive protection for abortion rights. However, a close reading of the remedy granted by Dickson CJ reveals that his reasoning can only be reconciled with a substantively protected abortion right. This article investigates Dickson CJ’s explanation for his remedy and contextualizes that explanation in light of the then governing law on Charter remedies, including the case of Schachter v Canada, which followed four years after Morgentaler. Reasoning from remedy, the author concludes that Dickson CJ found greater protection for abortion rights than is usually thought.
Based on a feminist framework, this exploratory research examines how criteria applied by the courts at the time of sentencing older women reveal gender stereotyping. An analysis of fifty-nine first-instance decisions involving women over the age of fifty, sentenced in Quebec during the last ten years, reveals the imposition of gender stereotyping in more than half, which creates a dichotomy in the treatment of these women by the courts. Thus, based on the stereotype of women's non-violent, maternal, and sacrificial nature, the so-called "good grandmother" is treated with more clemency than the so-called "deviant woman" who, by committing an offence, disrupts the gendered schemas within the patriarchal society, thereby deviating from the role expected of her, in addition to violating the law.
Indigenous Elders are vital to the transmission of Indigenous laws. This article describes the role of one Elder’s contribution to legal education, both within her community and to the Canadian legal academy more generally. Jean Borrows is an Anishinaabe women and a member of the Chippewas of the Nawash First Nation in what is now called Ontario, Canada. This article’s focus on her influence helps define, and potentially expand, the question: what is the Canadian legal academy? Indigenous Elders teach law through the way in which they live their lives and through the words that they impart to others. Borrows has carried many responsibilities over her long lifetime, which have helped her practise and pass along her community’s legal traditions. She has been a hunter, angler, forager, entrepreneur, Indian day school student, real estate agent, member of the Chippewas of Nawash First Nation, professor of Anishinaabe law, and N’okomis (my grandmother), to name a few. Indigenous legal orders, like those lived by Jean, have always informed the Canadian legal landscape, and they continue to do so in dynamic ways. Yet there are challenges to recognizing community-based professors of Indigenous law. By sharing select stories of Borrows’s life, this article suggests that the Canadian legal academy is not merely confined to university law faculties because Indigenous law teachers and theorists also live in community contexts. I aim to show how Borrows’s varied responsibilities, experiences, and teachers throughout her life gave her a type of legal knowledge that led her to become an influential educator of Anishinaabe law, including as an Elder at the land-based Anishinaabe Law Camps hosted regularly in her community since 2014 for hundreds of juris doctor students.
À partir d’un cadre théorique féministe, cette recherche exploratoire se penche sur la manière dont les critères appliqués par les tribunaux au moment de la détermination de la peine, pour les femmes aînées accusées, révèlent des stéréotypes genrés. L’analyse de cinquante-neuf décisions de première instance concernant des femmes âgées de plus de cinquante ans condamnées au Québec dans les dix dernières années a révélé l’application de modèles stéréotypés genrés dans plus de la moitié d’entre elles, ce qui crée une dichotomie dans le traitement de ces femmes par les tribunaux. Ainsi, à partir du stéréotype d’une nature non violente, maternelle et sacrificielle de la femme, la « bonne grand-mère » serait traitée avec plus de clémence que la « femme déviante » qui, par la commission d’une infraction, viendrait troubler les schémas genrés dans le cadre d’une société patriarcale, et donc dévier du rôle qui est attendu d’elle, en plus d’enfreindre la loi.
This article explores the recent expansion of Medical Assistance in Dying (MAiD) in Canada and its negative implications for women with disabilities. In 2021, the government extended MAiD to people with disabilities who are not dying, which the authors contend is a modern form of eugenics. Structured as a conversation and deploying a systemic, equality-based feminist analysis, the article tracks the shifts in scope and justification for MAiD through judicial and legislative developments, the overwhelming opposition by organizations representing people with disabilities, and the failure of feminist organizations to support their disabled sisters. The authors articulate a feminist response to the expansion of MAiD to address this troubling silence. After Isabel Grant sets out the foundations of Track 2 MAiD, Janine Benedet develops a critique of the concepts of autonomy, choice, and privacy as used by MAiD expansionists to justify these premature deaths. Elizabeth Sheehy explores some of the structural issues that affect the impetus for MAiD: women’s poverty, the medical profession, the gendered nature of caregiving, and men’s violence. Isabel Grant demonstrates the particular dangers for women of the extension of MAiD on the basis of mental illness, as evidenced by data from other countries. Catherine Frazee describes what a truly intersectional feminist approach to MAiD demands of more privileged feminists and concludes the conversation with a call for feminist solidarity.
This article is an effort to explain how a gender-specific (women only) community-based research project, working in partnership with an Indigenous women’s organization, made visible issues of gender, sexuality, and race in the Indian residential school (IRS) compensation claims process. The study focused on the Independent Assessment Process (IAP), which involved an out-of-court adjudication whereby IRS Survivors gave oral testimony to an adjudicator about serious physical and sexual abuses they experienced at IRS and the consequential harms. The IAP was a key part of the IRS Settlement Agreement. The article discusses the IAP in the context of Canada’s colonial history, and then it provides, through results of a community-based study, insights from Survivors, support workers, and adjudicators. The study demonstrated how the absence of a gender lens in legal policy and practices can create unfair bias and, conversely, how attention to gender, sexuality, and race can assist in mitigating colonial or settler bias. The article was inspired by a 2014 Queen’s University Faculty of Law conference in honour of the late Dr. Patricia Monture.
The purpose of this study was to identify the determinants of health and associated outcomes for women lawyers. It was also to identify promising avenues of research to improve the legal profession for women. The systematic literature review was conducted using five databases. Papers were first selected by eliminating the duplicates, then by analyzing the title and abstract, and finally by reading the papers in full. Twenty-six articles met the inclusive and exclusive criteria. Women lawyers' health determinants fall under four main categories: working conditions, organizational culture, psychological violence at work, and health determinants outside of work. The outcomes were separated into three categories: physical outcomes, psychological outcomes, and work-related outcomes. The conclusions of this study show the significant difficulties women face advancing in their career and balancing their work and family responsibilities.
Scholarship on corporate crime focuses, quite naturally, on profit-motivated crime. But there are crimes with an institutional dimension that are not recognized in this framework of corporate crime. In this article, I present a case study of a police organization where multiple employees committed sexual assaults to show that these crimes can have an organizational dimension. This analysis shows two things: first, that the corporate-culture model of attributing mens rea is more effective at identifying corporate crime than the one currently in force in Canada and, second, that organization-facilitated sexual assault is a corporate-entity crime, broadening the conception of corporate crime generally. The corporate-culture model explains why corporations should be liable for crimes they encourage employees to commit even when these are not in line with the organization’s objectives.
This article uses the 1978–79 trial of Vancouver prison activists and feminists Betsy Wood and Gay Hoon as a means of exploring the changing nature of feminist prison activism in Canada during the 1970s. The trial is placed in its historical context, with a focus on contemporary discussions about reform, abolition, and the carceral state, particularly in the feminist press and feminist organizations. The Wood/Hoon trial is explored through an analysis of both media accounts and archival records, including the very few records of the trial that survived. Discussion surrounding the trial shows the changing nature of feminist thinking about prisons: older feminist traditions of “helping” reform were challenged with new, left-wing, more radical perspectives that argued that all incarceration sustained and perpetuated forms of gender, race, and class social control.
Over the past five years, the Supreme Court of Canada has continued to grapple with the meaning of constitutional equality and discrimination. In this regard, there is a clear consensus that the Court should follow a two-step test to assess violations of section 15(1) of the Canadian Charter of Rights and Freedoms. First, the Court must identify a grounds-based distinction and, second, determine whether the distinction violates substantive equality. While both parts of the test present interconnected conceptual and contextual challenges, this article focuses on how the Court has applied the first step of the section 15 equality analysis. Recent case law reveals a deeply divided Court. First, fundamental differences are apparent with respect to whether grounds-based distinctions may be understood as inextricably embedded in legislative schemes. Second, the justices diverge on the exigencies of proving adverse impact discrimination. Legal technicalities, comparator group formalities, and fear of imposing any positive rights obligations on governments obscure critical dimensions of the disproportionate effects of law. Third, the association of adverse impact with unintentional discrimination risks overlooking the importance of the actual knowledge of disparities in the effects of laws and policies. Finally, the complex realities of intersectionality, while recognized by some justices, continue to remain on the periphery of equality rights doctrine. While the second step of the equality analysis engages more directly with an assessment of the contextual realities of substantive inequality, it is critical to ensure that courts reach this stage of the analysis and that it is not thwarted or obstructed by narrow and formalistic approaches to identifying grounds-based distinctions.
Abstract:Ce texte propose une première discussion en contexte canadien sur l'inconduite sexuelle policière qui sera illustrée par des cas issus de la jurisprudence et de diverses publications spécialisées. Bien que les nombreuses typologies et définitions nous aident à circonscrire ce que constitue l'inconduite sexuelle policière, elles nécessitent souvent d'être combinées afin de brosser un portrait exhaustif de la situation. En premier lieu, cet article suggère une nouvelle façon de comprendre l'inconduite sexuelle policière. En effet, en s'inspirant des écrits de John Gardner, la première partie de ce texte présente une façon d'élargir notre compréhension de l'inconduite sexuelle policière, c'est-à-dire étudier son contraire : la « bonne conduite sexuelle ». En deuxième lieu, cet essai se penche sur divers cas d'inconduites sexuelles policières recensés au Canada afin de démontrer la nécessité d'inclure une composante égalitaire dans la définition de la « bonne conduite sexuelle ». Enfin, il est à noter que cet article se veut être une discussion et non un portrait statistique de la situation canadienne.Abstract:This article provides an initial discussion in a Canadian context of police sexual misconduct based on case law and various specialized legal publications. While there are many typologies and definitions that help us frame what constitutes police sexual misconduct, they often need to be combined in order to provide a comprehensive picture. First, this article suggests a new way of understanding police sexual misconduct. In fact, drawing on John Gardner's writings, the first part of this article presents a way of broadening our understanding of police sexual misconduct—that is, to explore its opposite: "proper police sexual conduct." Second, this article examines several cases of police sexual misconduct in Canada to demonstrate the need to include an egalitarian component in the definition of "proper police sexual conduct." Finally, it should be noted that this article is intended to be a discussion and not a statistical portrait of the Canadian situation.
Scholarship on animal rights has long been dominated by the widely held idea that justice for non-human animals will not be achieved until they are granted legal personhood. In Animals as Legal Beings: Contesting Anthropocentric Legal Orders, Maneesha Deckha provides an alternative legal classification for non-human animals. “Beingness,” rooted in relational feminism, post-colonial theory, and critical animal studies, recognizes non-human animals’ inherent value, while avoiding some of the downsides to legal personhood—namely, its embeddedness in the imperialist liberal individualism that characterizes Western legal systems. Given its anthropocentric nature, personhood must be displaced as the aspirational classification for animals. Beingness is a “new legal subjectivity” that Deckha theorizes is a “solution to evading the impasse that currently encapsulates the core debate in animal law circles”—that is, the debate between animal welfare and animal rights. Deckha begins by setting out three problematic aspects of liberal legalism. First, drawing on feminist and post-colonial legal theories, its exaltation of legal personhood is grounded in faith in existing Western legal structures and a mistaken belief in the law as an emancipatory force for all. Second, liberal legalism, and, thus, personhood, is “decidedly anthropocentric” and centred on an understanding of “human” shaped by “racism, colonialism, sexism, and
This article provides empirical data on the public discourse surrounding abortion in Saskatchewan. Through an analysis of newspaper articles from two time periods—the dawn of the Charter era and three decades after Morgentaler—this article considers how abortion is framed in these accounts and whether, when “rights” terminology is employed, rights are presented as absolute or limited. This article adds to the empirical body of work documenting the presence of “rights talk” in Canada and the literature on the media’s framing of abortion.
