Feminist Professor Constance Backhouse wins prize

Thursday, June 25, 2015

University of Ottawa Faculty of Law Professor Constance Backhouse has won the prestigious Canadian Council for the Arts Molson Prize for the Social Sciences and Humanities. 

Congratulations Professor Backhouse, we are so proud of your feminist contributions.

Feminist Bioethics link

Monday, June 15, 2015

For those working at the intersection of ethics, law, health and feminism- here is a fantastic online resource treating feminist bioethics. In particular the bibliographies are worth looking at.

TWU litigation mini roundup

Wednesday, June 10, 2015

Here are a few sites of interest to those following the TWU litigation:

1) Out on Bay Street has an excellent website which includes press releases, legal arguments and other extensive archived materials.

2) Here and here: media coverage of the Ontario case.

Blogging for Legal Education

At the recent conference held by the Canadian Association of Law Teachers a small group of law bloggers, including bloggingforequality, held a round table. Professor Jennifer Koshan of ABLAWG.ca wrote this account of the session.

Other bloggers included: Prof. Paul Daly and Prof. Moin Yahya.

TWU litigation update

Tuesday, June 2, 2015

 The Globe and Mail reported that TWU was in court on Monday, May 31st challenging the LSUC's decision not to accredit their graduates.

You can find all of the relevant court documents here in a previous post.

For more background on this issue you can see previous posts here, here, here and here.

Kokopenace and Jury Representativeness

Monday, June 1, 2015

Vanessa MacDonnell
University of Ottawa

(A substantially similar version of this blog post appears in today's National Post.)

What does it mean to have a right to a representative jury? The Supreme Court of Canada answered that question last week in Kokopenace. Mr. Kokopenace was charged with second degree murder and was convicted of manslaughter by a jury. At the Supreme Court, he argued that he should be granted a new trial because the jury roll (the list of potential jurors) from which his jury was chosen contained very few Aboriginal people – a fact that was easily established on the record before the Court. In a judicial district in which 30 per cent of the population was Aboriginal, only 4 per cent of those on the jury roll were Aboriginal, and no Aboriginal people sat on Mr. Kokopenace’s jury. The representativeness issues were particularly concerning given that Mr. Kokopenace was Aboriginal. 

A majority of the Court ruled against Mr. Kokopenace, holding counterintuitively that the fact that the jury roll was not actually representative was irrelevant. Rather, “the state satisfies an accused’s right to a representative jury by providing a fair opportunity for a broad cross-section of society to participate in the jury process.” In a particularly revealing passage, Justice Moldaver suggests that Aboriginal people bear some responsibility for the system’s lack of representativeness, noting that they “[decline] to participate” in large numbers.  

The day after Kokopenace was released, the National Post’s Editorial Board lauded the decision, calling it “eminently reasonable and practical.” The Board acknowledged the issues with representativeness, but wrote that it would be “far more likely to undermine public confidence in the justice system… to overturn the verdict of a jury whose competence and fairness had never been impugned” than to grant Mr. Kokopenace a new trial.

The Editorial Board, and more importantly, a majority of the Supreme Court, misses the point. As the dissenters in Kokopenace explain, it has long been understood that the legitimacy of a verdict – especially in a murder trial – rests on the idea that the jury represents “the conscience of the community.” When a portion of the community is not represented on the jury roll, especially one that is subjected to the marginalizing effects of colonialism and racism, that legitimacy evaporates. 

While the majority would have us believe that they are simply engaged in the neutral task of interpreting and applying the law, their reading of the constitution is by no means inevitable. On the contrary, in deciding that the government need only try for representativeness to satisfy its constitutional obligations, the majority resists the plain meaning of the right to a representative jury. 

But the problems with the decision go much deeper than that. Judges wield enormous power in determining what constitutional rights require of government, and whose interests they protect. By concluding that the right to trial by jury should not be viewed as “a mechanism for repairing the damaged relationship between particular societal groups and our criminal justice system more generally,” the Court gives its institutional stamp of approval to the continued marginalization of Aboriginal people. As Deputy Grand Chief Alvin Fiddler of the Nishnawbe Aski Nation put it in an interview with the CBC, “It’s our community members that are filling those jails. It’s our community members that are interacting with the police, and yet in terms of being part of the justice system, they’re not there.” It is an all-too familiar narrative in a country scarred by the impact of colonialism and injustice. We are accustomed to Aboriginal people being dispossessed.

Of course, constitutional law cannot fix every social problem. No one would suggest as much. But when Courts decide that issues of colonialism and race are irrelevant to constitutional analysis, they undermine the constitution and the Court’s position as a trusted institution. I take modest comfort in the fact that two dissenting justices, Justice Cromwell and Chief Justice McLachlin, give voice to many of the concerns with the majority’s reasoning. But these protestations will be cold comfort to Mr. Kokopenace, whose unrepresentative jury has, by legal sleight of hand, been rendered representative. It will also be cold comfort to every other Aboriginal accused who must now face “justice” in a court system agnostic to whether Aboriginal people are counted as among the accused’s “peers”. 

Vanessa MacDonnell is a law professor at the University of Ottawa. She tweets at @vanessa_macd.

In Memoriam: Nicole LaViolette

Tuesday, May 26, 2015

It is with profound sadness that Nicole LaViolette’s colleagues announce that Nicole passed away on Friday, May 22, 2015.  Our faculty and our community will never be the same without her. 
Nicole graduated from the Common Law Section, winning the gold medal, in 1996.  She joined the Faculty as a professor in the French Common Law Program in 1998 and became a member of the Common Law Honour Society in 2006.  Nicole taught International Law, Human Rights, Refugee Law and Family Law, in both English and French.  She maintained an active academic and community education profile right until the very end, publishing two co-authored books, one on family law and one on cycling law, in the past year. 
Nicole received numerous prestigious awards for her exceptional teaching and graduate student mentoring, her prolific research and publishing, her dedication to faculty administration, and her community service.  In 2014, the Association des juristes d’expression française de l’Ontario honoured Nicole with its Ordre du Mérite; and the Lambda Foundation renamed its award at uOttawa the “Nicole LaViolette Friends of Lambda Prize,” recognizing excellence in research, public policy and laws affecting LGBTI people.  Most recently, Nicole was awarded the SOGIC (Sexual Orientation and Gender Identity) Hero Award from the Canadian Bar Association.  
Somehow Nicole also found the time to train as a competitive cyclist and skier.  As Dean Nathalie Des Rosiers said when she communicated news of Nicole’s passing to the Faculty “Nicole was a visionary professor, fighting for a just society, just for its immigrants and refugees, just for its LGBT community, just for its poor and vulnerable.” 
Nicole will be remembered for her dedication to others and her tremendous courage, as well as for her many achievements.  All of Nicole’s colleagues at Common Law wish to express their heartfelt condolences to Nicole’s life partner of 24 years, Lisa Hébert, to Nicole’s father, her siblings and the other members of her family.
Details about Nicole’s memorial service will be posted here as soon as they become available.
Last summer, Nicole created an endowment to support two of her most passionate interests:  immigrant and refugee students, and the French Common Law Program at uOttawa.  The “Nicole LaViolette Fund for Immigrant and Refugee Students Enrolled in the Common Law Program in French” will offer funding support to these students and projects promoting their academic and professional success.  Donations made to the “Nicole LaViolette Fund for Immigrant and Refugee Students Enrolled in the French Common Law Program” will be matched 1:2 until June 30, 2015, effectively increasing the value of your gift by 50%. For example, a donation of $20 is transformed into $30.  Donations in recognition of Nicole can be made to the Nicole LaViolette Fund via the contact information below, or by clicking here to make a donation directly online.
Donations can also be made to the “Nicole LaViolette Friends of Lambda Prize,” which recognizes excellence in research on law and public policy issues affecting gays, lesbians, bisexual, transgendered and intersex (LGBTI) people. Online donations to this prize can be made by clicking here.
Donation Contact:
Monique Washnuk
Development Officer,
Common Law Section
613.562.5800 ext. 4992

Ireland Votes for Equal Marriage

Saturday, May 23, 2015

Ireland Votes for Equal Marriage


Dr. Sinead Ring

Ireland has become the first country in the world to introduce equal marriage by popular vote. The National Returning Officer made the announcement at 6.57pm local time, announcing that the amendment passed by 1,201,607 votes to 734, 300. That is 62.1% Yes to 37.9% No.

Only one Constituency voted No (Roscommon-South Leitrim -  and that was by a margin of only a few per cent). Dublin South East was the highest YES vote at  74%.  But the rural parts of the country were also strongly in favour of equal marriage: 61.5% in Galway West and 63.8% in Wexford.

The total turnout was 60.5%, which is the highest turnout for a referendum in 20 years (the Divorce referendum in 1995 had a turnout of 62.2%).

The Amendment means that two people of the same sex can legally marry and these couples are afforded the same constitutional protections and rights as married couples of the opposite sex. These constitutional protections include the right to autonomy or freedom from interference by the State. Children of married same sex married couples will be included in the definition of family for the purposes of the Constitution.  See Fergus Ryan’s blog here for more details.

Legislation will now be passed to allow for the amendment to take place. Minister for Justice and Equality and Law Reform Frances Fitzgerald TD stated on RTE Television that the legislation would be passed this summer.

The referendum result is a wonderful moment of victory for the campaigners for Equal marriage. Those of us who worried about the idea of a public vote for a minority’s fundamental civil right to marry have to think again as the country is swept along in a tide of joy and political awakening.  Just check this link out to see what I mean: https://twitter.com/search?src=typd&q=%23marref

Of course this vote is also about more than marriage; it speaks to a new political engagement of young people, of a new separation of Church and State. And it feels wonderful. 

Marriage Equality Referendum in Ireland

Friday, May 22, 2015

Today Ireland will the only place in the world where the electorate will have a choice whether to enshrine marriage equality in its basic law. Voters will choose whether to vote in favour or not of the following proposed amendment to Article 41 of the Irish Constitution:

“Marriage may be contracted in accordance with law by two persons without distinction as to their sex.”

Further details can be found on the Referendum Commission’s website. Details of legal opinion in favour of marriage equality can be found over at Human Rights in Ireland.

The Amendment has deep links to Canada. As Angela McConnell notes in her chapter in Defining Events (Manchester UP: 2015) the campaign for full marriage rights for same-sex couples by MarriagEquality has its roots in a 2004 case taken by Katherine Zappone and Ann Louise Gilligan. In 2004 Katherine and Ann Louise were married in Vancouver. They sought to have their marriage recognise by the Revenue Commissioners in Ireland to avail themselves of tax benefits accruing to married couples in Ireland. While the action was unsuccessful, the case (the KAL case, as it became known) drew attention to the inequality of treatment of same sex couples under Irish law.

Civil partnerships were made legal in Ireland in 2011. However as Fergus Ryan explains here there are significant differences between civil partnerships and marriage under the Irish Constitution, which specifically protects marriage as a the “natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights and superior to all positive law.”

The referendum has been unprecedented in how engaged people have become with the democracy. The organisation YES Equality has organised canvasses all over Ireland, with social class being reported as an influencing factor in how people will vote.  Emigrants, mostly victims of the recent recession that hit Ireland’s young people particularly badly, do not have the right to vote if they have been away for more than one and a half years. I am one of those people. However, many of the 60,000 emigrants who left more recently are making the journey home from the UK, Canada and Australia).

One of the most striking aspects of the YES campaign has been its creativity: See here and the poignant Noble Call against homophobia by artist Panti Bliss in the Abbey Theatre last year.  In April, a four story mural of a gay couple embracing went up in South Great Georges Street in Dublin city centre. This week the artist Joe Caslin unveiled a sister mural on the side of castle in Galway. The picture accompanies this post. 

Anyone wishing to follow the referendum over the next few days should use the twitter handle #Marref.

Is it fair to make a public appeal for a live organ donor?

Thursday, May 21, 2015

University of Ottawa Professor Jennifer Chandler spoke with CBC News on Wednesday about the need for more people to register their willingness to be deceased donors in order to address the need and to reduce risks to live donors. (segment starts at 2:29)

Designed by Rachel Gold.