Guest blogger Ara Basmadjian on Aboriginal rights

Thursday, December 22, 2011

“Lax Kw’alaams Indian Band v. Canada (Attorney General): Supreme Court of Canada Denies Aboriginal Right to Commercial Fishing”

Although section 35(1) of the Constitution Act, 1982 “recognized and affirmed” aboriginal and treaty rights in Canada, the Supreme Court has not been particularly forthcoming in understanding the unique challenges faced by First Nations litigants and the lawyers who represent them.[1] In Lax Kw’alaams Indian Band v. Canada (Attorney General)[2] (“Lax Kw’alaams Indian Band”), the high court unanimously dismissed the Lax Kw’alaams’ claim of an aboriginal right to harvest and sell “all species of fish” on a commercial basis within their ancestral territories along the coast of British Columbia.[3] The Supreme Court’s recent decision underscores the highly factual character of aboriginal rights claims and provides some instruction on the modern expression of historical practices.

Prior to contact with Europeans around 1793, the Lax Kw’alaams First Nation harvested salmon, halibut, herring spawn, seaweed, shellfish, and eulachon in the northwest waters of what is now coastal British Columbia. The eulachon, or candlefish, were central to the Lax Kw’alaams’ life-way and served as the basis of their subsistence economy. The fish were harvested in late winter and often boiled into grease that could be used to preserve perishable foodstuffs. Eulachon grease was also bartered among indigenous peoples for other goods and resources.[4] In the late nineteenth century, the British Crown provided the Lax Kw’alaams with reserves and fishing sites within their ancestral grounds. In 2002, the Lax Kw’alaams sought judicial recognition of an aboriginal right to preferential access to the commercial fishery in their homelands.[5]

At trial, the court was not persuaded that the Lax Kw’alaams had engaged in any significant trade in natural resources which constituted an integral aspect of their distinctive culture. The importance of eulachon grease to the Lax Kw’alaams’ civilization did not provide a sound historical basis for a modern right to commercial resources.[6] The British Columbia Court of Appeal confirmed the trial judge’s decision that trading in fish resources was largely limited to a particular species and did not evolve into a general right to commercial fishing.[7]

The Lax Kw’alaams First Nation advanced four arguments before the Supreme Court of Canada: (1) the lower courts effectively reversed the proper inquiry by characterizing the aboriginal rights claim before examining the relevant evidence and historical practices; (2) trade in eulachon grease should not be considered an isolated practice but rather part of the Lax Kw’alaams’ broader culture; (3) in the event that the Lax Kw’alaams fail to establish a commercial fishing right, then the court should consider fishing rights on a more modest scale; and (4) the Honour of the Crown necessarily engaged preferential access to the fishery during the allotment of reserves and fishing sites in the 1880s.[8]

Justice Binnie, for the Court, rejected the Lax Kw’alaams’ characterization of the approach to establishing an aboriginal right. The statement of claim is the logical starting point and contextualizes the evidence that is to follow. The Lax Kw’alaams, according to Justice Binnie, were asking for a “commission of inquiry,” which is not appropriate in civil litigation.[9] As Justice Binnie suggests, “[t]he trial of an action should not resemble a voyage on the Flying Dutchman with a crew condemned to roam the seas interminably with no set destination and no end in sight.”[10] The Lax Kw’alaams’ approach to aboriginal rights was also contrary to established authority in the Supreme Court’s seminal decision in R. v. Van der Peet.[11] Furthermore, the rules of civil procedure stipulate that pleadings, at the outset, provide the opposing party with fair notice of the parameters of the case.[12] Yet, Justice Binnie’s reasons tend to obscure the notion that aboriginal rights claims serve a measure of reconciliation between the Crown and First Nations people. Perhaps the adversarial nature of civil litigation is inappropriate in the context of aboriginal rights claims and should be tempered in order to promote collaboration in which the courts play a more inquisitive role.

Aboriginal rights claims are based primarily on the facts. The courts have stablished that aboriginal rights are not frozen in time but are permitted to evolve in accordance with both “quantitative and qualitative” limits.[13] Indeed, the modern expression of an aboriginal right must contain sufficient continuity with a distinctive pre-contact practice. Justice Binnie placed great emphasis on the trial judge’s findings of fact. Although the Lax Kw’alaams’ harvest and trade of eulachon grease was “an integral part of their distinctive culture,” their ancestral life-ways did not include significant trade in other fish products generally.[14] In short, the right to a commercial fishery would constitute a qualitatively different activity from the Lax Kw’alaams’ “species specific” practice.[15] Moreover, the right to harvest fish on a commercial scale would be quantitatively disproportionate to the Lax Kw’alaams’ activity.[16]

If the courts denied their claim to a commercial right, the Lax Kw’alaams argued that the judges should have engaged in a more searching inquiry of “lesser and included rights.”[17] This claim was not presented in a clear or coherent manner. Justice Binnie supported the trial judge’s conclusion that rejection of the original claim ultimately amounted to rejection of the lesser claim.[18] Indeed, both arguments lacked the requisite evidence.

Finally, Justice Binnie dismissed the notion that the Honour of the Crown created an obligation to provide the Lax Kw’alaams with a commercial fishing license. Once again, Justice Binnie based his decision largely on the trial judge’s interpretation of the facts. There was simply no evidence to support the claim that the Crown intended to grant the Lax Kw’alaams preferential access to commercial resources.

The Supreme Court’s decision in Lax Kw’alaams Indian Band provides much-needed clarification on what is required to advance an aboriginal right. The case is significant because it serves as a warning against litigants who try to extrapolate broad modern rights from comparatively narrow ancestral practices. The decision also illustrates the difficulty of claiming an aboriginal right based on limited historical evidence. This challenge is compounded by the adversarial character of civil litigation. Perhaps aboriginal claimants would be better served by a more collaborative forum.

Ara Basmadjian is a third-year J.D. candidate at the University of Ottawa.

[1] Constitution Act, 1982, s 35(1), being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[2] Lax Kw’alaams Indian Band v Canada (Attorney General), 2011 SCC 56 [Lax Kw’alaams Indian Band].
[3] Ibid at para 1.
[4] Ibid at para 15-17.
[5] Ibid at para 18.
[6] Ibid at para 28.
[7] Ibid at para 32.
[8] Ibid at para 37.
[9] Ibid at para 40.
[10] Ibid at para 41.
[11] Ibid at para 42. See R v Van der Peet, [1996] 2 SCR 507.
[12] Lax Kw’alaams Indian Band, supra note 1 at 43.
[13] Ibid at para 51.
[14] Ibid at para 52-53.
[15] Ibid at para 56.
[16] Ibid at para 58.
[17] Ibid at para 60.
[18] Ibid at para 62.

The Guardian's Top Women of the Year 2011

Friday, December 16, 2011

SARAH STEVENSON, TAEKWONDO WORLD CHAMPION tops the Guardian's list of justice-seeking powerhouses.

Owning Public Events: ‘Performance-Enhancing” Rights and the Olympics

Picture the small university town which holds its convocation ceremonies every spring. Proud parents and siblings, aunts, uncles and grandparents flock to the town to see junior graduate. This is the single biggest annual event in the community, and it creates a boon for local businesses of all kinds, including hotels, restaurants, bars, gift shops, florists, and convenience stores. Many of these local businesses will hang signs or banners in their windows celebrating the graduating class. In doing so, they recognize the importance of the event to the community, and they celebrate a significant occasion in the lives of residents and visitors to the community. Many of the businesses also recognize the important economic benefit brought to the community by the students, and feel it appropriate to signal this appreciation. Graduating students have likely worked as part-time employees in many of these businesses. In some cases, business owners are alumni of the schools, or have children who have attended the school. Of course, it is also true that the businesses recognize that they may benefit financially by tapping into the enthusiasm and pride of visitors to the community.

Now picture the University deciding that it “owns” convocation. After all, the event only happens because of the operations of the university. It is a major, recurring event that requires organization and preparation. The University, which is in part publicly funded, has no doubt experienced budget cuts and dislikes raising tuition to meet its needs. It might have a few key private sector donors that it would like to reward and encourage as much as possible. These donors, it reasons, have supported the university, and so should receive some sort of exclusivity when it comes to major university events. The donors think this is a good idea too. So, the university decides that it is entitled to control the goodwill associated with convocation; it wants to prevent local businesses from trading on that goodwill without paying for the right to do so. Alternatively, it might decide that rights to associate commercially with convocation should be available only to a few select corporations – those who are able to pay premium prices for an exclusive opportunity. It decides to take legal action against any company that puts up signs or banners that make any direct or indirect reference to its major event.

Does this scenario sound absurd and far-fetched? Perhaps it is an extreme example, but it is clear that we are beginning to head in the direction of recognizing some form of property right in the goodwill associated with major events. And there are good reasons why we should be concerned.

We are now only months away from the 2012 summer Olympic Games that will take place in London, England. To call this a major event is an understatement. Along with the fanfare, pomp and ceremony of the Games, we will be bombarded with advertising and merchandising campaigns. These campaigns, for the most part will be engineered by Olympic sponsors – those mega corporations that have shelled out enormous sums of money for the privileges that come with sponsorship.

There are other voices in the story of marketing and the Olympic Games, however. For years, non-sponsors have sought to associate themselves with the Olympic Games (or with other major sporting events, for that matter) without paying the exorbitant sponsorship fees. Such campaigns are called “ambush marketing”, and they are often cleverly designed so as to create associations without actually using the protected intellectual property of the International Olympic Committee (IOC) (which includes all manner of trademarks such as the name Olympics and the famous rings). For example, in 1992, Mastercard, a commercial rival of credit card company and Olympic sponsor VISA, ran an advertising campaign that stated: “And remember, to visit Spain, you don't need a visa”. (Get it?)

In frustration at the persistence of companies seeking to reference a mega international event in their marketing campaigns without having paid through the nose for the right to do so, the IOC has, for a number of years now, made a commitment to enact strong anti-ambush marketing legislation a condition of a successful Olympic bid. You might not have noticed that Canada did so for the 2010 Winter Olympics in Vancouver. This is because (as Dana Ellis, Benoit Séguin and I argue elsewhere), Canada’s constitutional division of powers made the drafting of such a law a tricky business, and the legal departments of major corporate non-sponsors quickly found the obvious loopholes and drove their marketing trucks right through them. (Does anyone remember the Lululemon ambush?)

Being a unitary state, these division of powers issues are not shared by Great Britain, and their anti-ambush marketing laws are among the most stringent ever seen. Former British Minister of Sport, Richard Caborn, explained to Parliament that the laws were drafted in extremely broad and open-ended terms because “we must have flexibility in our approach, to allow us to respond appropriately to any changing demands by the IOC – and there will be some – and to enable us to react to any new or innovative ambush marketing techniques that might arise between now and 2012.” (House of Commons Debates (U.K.), 2005). If that makes you feel even a little bit queasy, consider the draft regulations that have just been proposed in the U.K. The regulations give an extraordinarily broad definition of advertising. It includes just about any kind of message placed in any location that is “wholly or partly for the purpose of promotion, advertisement, announcement or direction.” It expressly captures the display of messages on a human or animal body, having a human or animal carry anything on which an advertisement is displayed, wearing advertising attire, or displaying an advertisement on an individual’s body (which includes using body paint). The regulations go so far as to target human and animal bodies because these were among the last uncontrolled communicative spaces left around the Games.

You may recall that during the 2010 FIFA World Cup of Soccer in South Africa, a group of Dutch women were arrested and charged with ambush-marketing offences (yes, FIFA now insists on such legislation too) after they attended a football match together wearing unbranded orange dresses that had been supplied by a Dutch brewery. The charges were only dropped after the story received an embarrassing amount of media coverage that made the laws seem rather difficult to justify. It is safe to assume that the Dutch women in orange dresses would not be welcome at the London Games either. We all know that the female body is considered by marketers a powerful advertising medium; what is interesting in this example is that the women themselves were criminalized for being the vehicle by which a banned message was communicated.

It is also interesting that instead of letting major corporations and event organizers duke it out in the business arena, these pillars of the free market economy have insisted upon government intervention to silence all possible distracting messaging during substantial periods before, during and after the event. And although the most problematic ambush marketing campaigns are ones that come from major corporate rivals of event sponsors, these are also the players that have the most resources to hire teams of clever lawyers to find the legal loopholes for them. Yet ambush marketing laws are applied to all businesses, large or small, with the result that small local businesses in the communities which host such major events, are allowed only to carry on their normal marketing practices and may not even mention that big event taking place on their doorstep. The mom and pop diner offering gold, silver or bronze breakfast specials during the Olympics is among those least able to respond to or fight the cease and desist letter they would inevitably receive.

By creating property-like rights in major events, governments have acted to further shrink the already embattled public domain and have contributed once again to the creeping propertization of just about anything. In this case, the IP-like right is given to event organizers, notwithstanding the fact that a major public event is a multi-stakeholder enterprise. These events do not take place without national and local government involvement, without taxpayer support, without citizens making sacrifices related to local disruptions, without athletes training and preparing for years in advance, and without the support of thousands of local volunteers – to name just a few of the stakeholders. Event organizers are being given rights in something that is not solely theirs, and in doing so, they have the power to shut down the very natural ways in which communities respond and interact to events taking place in their midst.

Universities are not next in the queue for protection under this sort of legislation. Expect it to reach all major international sporting events first (look for it again in Canada, for example, when Canada hosts the Pan-Am Games in 2016). Then look for it in relation to major sporting events such as the Stanley Cup or the Superbowl. Once it gets that far, then universities can get into what will likely be a very long line up to claim legally enforceable rights in the public domain.

Teresa Scassa is Canada Research Chair in Information Law at the University of Ottawa

Supreme Court of Canada to hear Niquab case today

Thursday, December 8, 2011

Today the Supreme Court of Canada will hear the case of R v NS, which implicates the right of a sexual assualt victim to testify while wearing the Niquab.

Here you will find a recording of a recent forum at the University of Ottawa Faculty of Law on the issue, which features a presentation by Professor Natasha Bakht.

Professor Carisimma Mathen, also of the University of Ottawa Faculty of Law commented this morning in the Globe and Mail, this morning.

National Day of remembrance and Action on Violence Against Women

Tuesday, December 6, 2011

National Day of remembrance and Action on Violence Against Women

Violence against Women in Canada: A snapshot

Violence against women by their male intimate partners around the world is a widespread, systemic problem,[1] and Canada is no exception. Through Statistics Canada, the Canadian government has been tracking rates of violence against women in Canada since 1993.[2] It has remained a consistent and pressing problem throughout this period.[3] Despite an overall drop in the crime rate,[4] women in 2009 reported rates of physical assault and sexual assault similar to those reported in 1999.[5] In 2009, of the eight crimes reported in the General Social Survey, women were most likely to report being a victim of physical assault, followed by sexual assault, and robbery.[6] According to 2009 police-reported data, spouses (current or former), and other intimate partners, committed more than 41% of violent incidents involving female crime victims. Other family members and acquaintances account for another 42% of violent incidents. In other words, 83% of violent crimes committed against women are perpetrated by people they know.[7] In 2006, spousal violence made up the single largest category of convictions involving violent offences in non-specialized adult courts in Canada over the five-year period 1997/98 to 2001/02. Over 90% of offenders were male.[8]

Women are also more likely to be killed by a male spouse or other intimate partner than anyone else. In 2009, females accounted for 71% of victims of homicides perpetrated by a current spouse, 88% by a former spouse, and 78% involving other intimate partners.[9]

These rates, which include data from police, may under represent the actual rates of violence against women, due to underreporting of violence. In 2009, only one-quarter of women victims of spousal violence reported the incident to police. Reasons for not reporting to police are varied and include fear of reprisals by the offender, shame and embarrassment, and a reluctance to become involved with the police and courts.[10] This is down from 2004 reporting rates, which showed 36% of female victims of spousal violence reported these crimes to the police.[11]

Angela Cameron is a Professor at the University of Ottawa Faculty of Law

[1] United Nations Secretary General, In-Depth Study on All Forms of Violence against Women: Report of the Secretary General (New York, United Nations general Assembly, 2006).
[2] In 1993 Statistics Canada conducted the first survey dedicated to violence against women. (Johnson, infra at 16). Also, 2011 marks the twelfth edition of Statistics Canada’s more general violence measuring tool, which tracks ungendered data collected from the national census in five year cycles. (Canada, Statistics Canada, Family Violence in Canada: A Statistical Profile (Ottawa: Statistics Canada, 2011).
[3] Holly Johnson, Measuring Violence against Women: Statistical Trends, 2006 (Ottawa: Minister of Industry, 2006). It is worth noting that updated, ungendered statistics from 2009 do not show any significant changes from the 2006 data, except to note that ‘rates of self-reported spousal violence remained stable, as did the severity of the violence, although overall survivors were less likely to report violence to the police.” (Statistics Canada, supra note 2 at 2).
[4] Johnson, supra note 3.
[5] Mahoney, infra at 6.
[6] Statistics Canada, Women and the Criminal Justice System by Tina Hottan Mahoney (Canada: Minister of Industry 2011) at 5 [Mahoney].
[7] Ibid. at 7.
[8] Statistics Canada, Measuring Violence Against Women: Statistical Trends 2006 (Ottawa: Minister of Industry, 2006).
[9] Mahoney, supra note 6 at 13.
[10]Ibid. at 6.
[11] Statistics Canada, Measuring Violence Against Women: Statistical Trends 2006 (Ottawa: Minister of Industry, 2006).

Greenberg Lecture Tomorrow

Tuesday, November 29, 2011

Professor Jennifer Bond
University of Ottawa Faculty of Law

"Securing Consistency for Consistent Security: Gender and the Responsability to Protect"

11:30 am

University of Ottawa, FTX room 351

Lunch provided.

Public Talk: Traditional Teachings: Family and Culture of the Métis

Monday, November 28, 2011

Dr. Brenda MacDougall

Canadian Research Chair
of Métis Research
University of Ottawa

November 29th at 5:30 pm, at Lamoureux Hall (LMX), room 477 - University of Ottawa.

Polygamy - my "quick and dirty" reaction

Wednesday, November 23, 2011

This reference is over 1300 paragraphs (300+ pages) and requires sustained engagement. But as I've spent the majority of the afternoon wading through it, I thought I would do a brief blog post.

Basically, I find the decision very disappointing. I think the judge's use of "Western civilization and its values" as a benchmark for criminal law is highly problematic. I find it shocking that he could possibly conclude that the intent behind the criminalization of polygamy in 1892 was anything other than discriminatory and bigoted. The idea that it has always been motivated by concern for harm to women and children is... risible. Quick reality check - marital rape was not a crime in 1892 (indeed, it was not addressed until 1983). Yet we're supposed to accept such a benevolent purpose?

With respect to the religious freedom argument, I have always maintained that religious freedom cannot ground an exemption to an otherwise valid criminal law. But this criminal law is not valid. Justice Bauman accepts that polygamy is constitutive of "unique" harms that are somehow separate from other intimate relationships, and these harms are experienced profoundly by women and children. Yet, he admits that "polygamy" includes both polygyny and polyandry, and he rejects the idea that proof of harm is required!

The harms of polygamy are the harms of patriarchy. The fact that we are somehow only concerned about those harms insofar as they exist in plural relationships tells us all we need to know about whether the criminal prohibition is principled and justified.

So, on the whole, a very bad result...and the copious (and wrong-headed) findings of fact will make fair appellate review very challenging.

Who could possibly argue against a polygamy law?

In fact, the question would have been preposterous even a few years ago. Polygamy laws, it seems, have always been with us. The idea that marriage can mean anything other than the union of two people (not so long ago, "one man and one woman") strikes many as absurd, even dangerous.

Yet, that is precisely the issue that will be the focus of Chief Justice Bauman's opinion later today. And it is clear that there are, indeed, numerous arguments that suggest that continuing to criminalize polygamy is no longer acceptable.

A commonly heard challenge to the polygamy law is that it discriminates against those who seek to be in plural relationships out of a personal religious conviction. Section 2(a) of the Charter guarantees everyone the fundamental freedom of conscience and religion. To the extent that someone sincerely believes that a polygamous union will assist him or her in following a particular faith system, then polygamy becomes a protected religious choice. Importantly, it does not matter that the belief may be odd, an outlier or even rejected outright by other members of the same faith. It is still protected, though it can be subject to reasonable limits. Those limits will depend on the scope of the offence in question, its purpose and its impact on the people it catches.

The polygamy law is also challenged on the ground that it is vague. The Criminal Code does not define polygamy, and it includes as part of the offence a separate state of being in "a conjugal union involving more than one person at a time." While "polygamy" could perhaps be defined as being "married" to more than one person (presuming of course that one could decide what counts as a "marriage") the term "conjugal union" is highly problematic. Does it require people to actually live together? Must there be a sexual relationship, or merely one of dependence? If children are involved, does that change the analysis? What weight should be given to the intent of the parties?

Obviously criminal laws use broad, even diffuse, terms all the time and that by itself does not make them vague. Ultimately, though, laws must be precise enough to provide guidance to those who must apply and interpret them, namely, police, Crown prosecutors and judges. One of the challenges with the polygamy law is that it has been so rarely used that it is difficult to even know what present-day mischief the law is trying to address.

That brings us to another problem with polygamy - the basis on which it was criminalized in the first place. The law originally was directed at Mormons to keep them from emigrating to Canada from the US. Indeed, until 1955 the Criminal Code specifically mentioned "Mormon spiritual or plural marriage." Today, that kind of targeted use of the criminal law based on nothing but antipathy towards a particular group automatically violates the Charter, as well it should.

The offence no longer singles out Mormons, and the federal government has argued that it now represents a more conventional use of the criminal law to uphold certain moral values. In that case, the issue is whether criminalizing families is a proportionate means of upholding those values. The law carries a possible prison sentence of five years, it applies to everyone in the relationship and it concerns a fundamental life choice: the way in which we constitute our families. Does it strike the right balance?

The other aspect of polygamy, of course, is the equality of women. We have all heard the harrowing stories of sexual exploitation, of child marriage and of forced child-bearing. Polygamy commonly is associated with an extremely harmful form of patriarchal dominance, one that denies women education, social support and true choice. And, of course, one cannot forget the position of children born into these communities. Don't these people deserve all of the help and support we can give them?

One difficulty is that it is not at all clear that criminalizing the family unit - as opposed to specific harms that occur within that family unit - achieves anything other than to further isolate and marginalize those who are most vulnerable. Another difficulty is knowing in advance which polygamous unions given rise to these harms and which do not. And, finally, if the state's true concern is the exploitation and abuse of women and children, why on earth would it want to limit its scope to polygamy? Wouldn't it make more sense to seek to address those harms no matter how many persons are in a marital relationship?

It is understandable why so many are so invested in saving the crime of polygamy. But, as we contemplate this serious issue, we must be careful to always keep in mind the underlying principles of our society and legal system. We must be willing to examine polygamy in all its aspects, and to give fair consideration to troubling questions.

Some background to the polygamy reference

In advance of BC Supreme Court Chief Justice Bauman's opinion in the Reference re: Criminal Code, s.293 I thought I would provide a brief primer of how we came to be here. In a second posting, I will describe the legal issues.

Section 293 of the Criminal Code makes it a crime to be a party to, or to assist in the solemnization of, "any form of polygamy" or "a conjugal union with more than one person". It has been a part of our criminal law since the Code was first enacted in 1892, though it used somewhat different language. Yet it has not been used more than a handful of times, and not at all in the last fifty years.

In recent years, the British Columbia government has been interested in resurrecting the use of the polygamy law against people like Winston Blackmore who is one of the "leaders" in the community of Bountiful. Bountiful follows a particular branch of the FLDS, and is described as a breakaway Mormon splinter group. Polygamy is openly practiced, and a number of men are known to have many wives and dozens of children. There are conflicting accounts of what life is actually like in Bountiful, but women who have left the community say that they routinely were subject to exploitation, social isolation and forced childbearing.

The problem faced by the Attorney General of BC is that his own lawyers were convinced that section 293 is unconstitutional - that it violates the Charter. The Attorney General tried to proceed with a special prosecutor, but had to retain three of them before finding one who would agree to charge the men in Bountiful. After the indictments were laid, the BC Supreme Court found that the Attorney General had acted illegally by, in essence, shopping for a prosecutor to do his bidding. The Court then quashed the indictments.

The Attorney General then did what many thought should have happened all along; he decided to proceed via a reference to the BC courts, asking them whether section 293 is constitutional. References are a special kind of legal proceeding where a court is asked to decide legal questions in the absence of an actual case. They are fairly common in Canada, and while they do not technically have the force of law (they are considered merely "advisory") they nonetheless carry great weight.

Normally, references are heard in appellate courts before panels of judges. Unusually, the Attorney General decided to refer the matter to the BC Supreme Court - a trial level court. This means that it was heard before a single judge - Chief Justice Bauman. The Attorney General decided to take this route (a legal first) because he wanted to have a trial-like proceeding with witnesses, experts and other kinds of evidence.

The reference began in late 2010 and lasted six months. It involved numerous intervenors, thousands of pages of documents and dozens of witnesses. Regardless of the outcome today, the Chief Justice deserves appreciation for undertaking this monumental task.

Carissima Mathen on the Limits to Occupation

Tuesday, November 22, 2011

According to Professor Mathen in today's Ottawa Citizen:

"Protesters have an absolute right to occupy, but not to occupy absolutely"

TODAY: The Muslim Law Students Association (MLSA) and the Women's Legal Education and Action Fund (LEAF) Event

Monday, November 21, 2011

The Muslim Law Students Association (MLSA) and the Women's Legal Education and Action Fund (LEAF) invite you to a legal lecture and discussion on the upcoming hearing of R. v. N.S.(Supreme Court) this Thursday!

Date: November 24th, 2011

Time: 12pm-1pm

Location: University of Ottawa, Fauteux Hall, Room 232

The topics will include:

• Why was a sexual assault complainant asked to unveil beforebeing allowed to testify?
• Are judges allowed to assess the validity of a witnesses’ religious beliefs?
• Is demeanor evidence a reliable assessment of credibility?

Speaker: Natasha Bakht (Law Professor, University of Ottawa)

Please arrive on time - seats will be VERY limited!

See here for information on the case (including factums).

(The Supreme Court hearing will be taking place on December 8, 2011)

Can UN Women Take Global Gender Equality from Rhetoric to Reality?

Friday, November 18, 2011

Since its formal launch early this year, the international community has celebrated the creation of UN Women, the new United Nations agency dedicated to furthering gender equality and women’s empowerment worldwide. UN Women has a start-up budget of $500 million, an amount more than double the total funding of the four UN bodies amalgamated to form the new agency, and is governed by a 41-member Executive Board headed by former Chilean President Michelle Bachelet. At the rank of under-secretary-general, Bachelet has more clout than any official tasked with gender equality has ever enjoyed in the UN system. Applauding the agency as proof of renewed dedication by the UN to prioritize gender equality, Secretary-General Ban Ki-moon pledged that the UN Women will “significantly boost UN efforts to promote gender equality, expand opportunity, and tackle discrimination around the globe.”

Beyond its symbolic allure, however, lurks a question the ovations for UN Women largely overlook: How will the new agency approach the practical work of gender equality in the global context? Can UN Women remedy the mistakes and avoid the pitfalls of past UN efforts to combat gender inequality?

For decades, the UN has touted gender mainstreaming as the key to unlocking gender equality in countries around the world. In principle, gender mainstreaming includes formal consideration of the gender implications of UN programs worldwide, promoting women’s participation in domestic decision-making structures, and attempting to increase women’s representation inside the UN and other international institutions.

In practice, however, gender mainstreaming has boiled down to a one-size-fits-all policy of ‘add women and stir.’ Limited attention is paid to the particular needs of women and girls in the diverse communities where UN gender mainstreaming plays out. In a recent survey of 100 civil society organizations working in 75 countries, nearly half reported that the UN does not understand the daily realities of women on the ground. Women have made up only seven percent of negotiators in major UN peace talks in spite of Security Council Resolution 1325, intended to amplify the role of women in conflict resolution. At the UN itself, women make up more than half of employees at the lowest levels, but occupy less than 26% of top jobs. Most discouraging is the lack of progress on the UN Millennium Development Goals, designed to reduce poverty, disease, inequality and other obstacles to development, where major indicators on women and girls lag well behind targets in other areas.

To be sure, the UN faces a unique set of challenges in pursing global gender equality while balancing the varied interests of member states, all on a limited budget over which it has little control: to date, UN Women has raised only $200 million in member state donations. Besides, gender mainstreaming has made some strides toward improving the visibility of women in the international arena, including the formal inclusion to the UN agenda of violence against women and the promulgation of Security Council Resolution 1820, recognizing sexual violence during conflict as a matter of international peace and security. Unfortunately, these successes are the exception, not the rule. According to Paula Donovan, co-director of the HIV/AIDS advocacy organization AIDS-Free World, “It’s been awfully easy [for the UN] to get away with expressing interest in achieving women’s rights without actually demonstrating commitment to achieving women’s equality. This is a hard habit to break.”

Indeed. Despite the recognized shortcomings of gender mainstreaming, there is no indication that UN Women will take a different tack going forward. Rather than falling back on old habits, UN Women should take advantage of its new leadership and increased funding to overhaul the gender mainstreaming approach. To carefully tailor its country-specific policies to the needs of local communities, the new agency should strengthen connections with local organizations. A first step in this regard would be to reserve a meaningful number of seats on the 41-member Executive Board of UN Women for members of civil society groups. Closer to home, UN Women should spearhead the renovation of hiring and promotion policies to recruit and retain a diversity of women in the UN system.

In her first address as the head of UN Women, Michelle Bachelet told the General Assembly that gender equality “must be more than a mantra. It must become a lived reality for women and men and boys and girls in all countries.” The rhetoric is undeniable. The problem faced by Bachelet and UN Women is that gender mainstreaming simply isn’t up to the task of taking gender equality from rhetoric to reality.

Jenna McGill is a Professor at the University of Ottawa Faculty of Law.

Feminist Law Professor in the New York Times

Tuesday, November 15, 2011

See feminist law professor Debra Parkes of the University of Manitoba Faculty of Law on the collateral consequences of criminal conviction in the New York Times.

British Columbia to introduce family law reform

British Columbia's provincial government has tabled legislation that will:

- identify legal parents in cases of assisted human reproduction.
-creates a new class of protection order.
-applies the rules of property division to common-law spouses who separate.
-defines violence to include emotional and phsychological abuse.

More details and commentary to follow.

The Secrets We Keep

Monday, November 14, 2011

Almost two years ago, we held a conference at uOttawa commemorating the tenth anniversary of the Jane Doe decision on sexual assault. After two long, draining days talking about rape, I sat with a group of weary feminists in an emotionally-charged conversation about where to go next. We were depleted and demoralized, tired of fighting the same battles. One of our feminist icons, raging against the continued stereotyping of raped women, insisted that those amongst us who have experienced sexual violence say so, just like women came forward with their stories of abortion and domestic violence in other eras. She was angry that women still bear the stigma and shame of rape. She argued we could fight it, and remind everyone that rape affects us all, if we only went public. Stop being academic about it she said: make it personal. Tell our stories. Don’t keep rape a secret.

A few weeks ago, Rick Mercer’s usually comic one-minute weekly rant on “This Hour Has Twenty-Two Minutes” turned serious in a way that reminded me of that moment. Mercer reacted to the suicide of Ottawa teen Jamie Hubley with a challenge to those in the public eye. Mercer argued it is an obligation for gay and lesbian public figures to “come out” and to stand as role models for gay youth. The queer community has a special responsibility to confrontthe bullying and homophobia that causes so much heartache, and that contributed to Jamie Hubley’s despair. Mercer was immediately lauded and lambasted. Kate Heartfield’s column agreed with him that “Gay people have one powerful weapon straight people do not: the power of their example.” Others argued he was wrong to shame public figures into coming out by implying they are cowardly if they do not. An editorial in the “Globe and Mail” on October 28th stated it pretty bluntly: Mercer is “wrong, terribly wrong, about the moral obligation he would put on gay people in public life.” The editorial recognized that it may “spread tolerance” if gay athletes and soldiers, police officers and politicians “made their orientation known far and wide” but condemned Mercer for placing a special burden on those individuals, a burden “that is on no one else in our society”.

Two days after the Globe editorial, feminist writer and activist Shari Graydon posted a blog with the subject header “Do feminists have an obligation to ‘out’ themselves?”. Like me, Graydon admires those who do come out of the closet, believing it helps to counter stereotypes. She then linked to an article by ForbesWoman contributor Victoria Pynchon about what Graydon described as a “related dilemma”. Pynchon posted on the subject “Will Feminism Hurt Your Career” and described how she disassociated herself from the feminist movement in her first week of law school when she decided, “I just want to be a law student, not a woman, law student. I want to be a lawyer, not a woman lawyer.” And so she laments, “that was the end of my involvement with women’s organizations for thirty years.” She insisted feminists have a more limited job market if their political opinions are public. There are people who won’t hire or retain feminist lawyers. Going public as a feminist, she equivocated, “is a personal, moral decision—one only you can make”.

In early October, 85 year old Harriet Hills Stinson, a prominent member of the Hills Bros. coffee clan, revealed a long-held personal secret: she had in illegal abortion when she was in her 20’s. She told her secret in response to Republican plans to cut funding for family planning and abortion services. She “came out” so to speak at a pro-choice fundraising lunch, and she urged other women who have had abortions to come forward.

What is fair when it comes to private burdens and public declarations? How many of our secrets deserve to be kept, and what are appropriate public expectations when we take on roles as politicians, writers, entertainers or even educators? Would young women fight harder against misogynist laws and practices if more of us told our stories of rape, abortion, domestic violence and sexual harassment? I reacted with overwhelming support for Mercer’s call to the queer community. But it is easier, I realize, to support the telling of other people’s stories. Many of us carry secrets that diminish our own spirits, reinforcing the shame and stigma of being gay, raped, or choosing an abortion. The Globe editorial was wrong about one thing: many of us face special burdens, and Mercer may just have prompted a much wider challenge. The recent disclosures of sexual harassment suffered by female RCMP officers, threw into stark light a culture of abuse and misogyny within the force. Those women are role models to the rest of us who stay silent in the face of discriminatory practices.

Daphne Gilbert is an Associate Professor at the University of Ottawa Faculty of Law.

Black Law Students’ Association Public Statement

Thursday, November 10, 2011

Black Law Students’ Association Public Statement

We, the Black Law Students’ Association of the University of Ottawa (BLSA Ottawa), are a network of students devoted to excellence and substantive equality. We belong to a national student federation, the Black Law Students’ Association of Canada (BLSAC), committed to advancing the academic and professional interests of black law students across the country. We are charged with the responsibility of actively creating an environment in which black law students, our colleagues, friends and mentors are supported when subject to oppressive and racially discriminatory conduct.

Consequently, we take this opportunity to address publicly the statements made by Denis Rancourt, a former physics professor at the University of Ottawa, who, on his blog U of O Watch, wrote that Faculty of Law Professor Joanne St. Lewis acted like a “house negro” in response to her assessment of a report done by the Student Appeal Centre (SAC) in 2008 at the University of Ottawa.

Historically, “house negro” was a term used to denote a black slave in the United States and Canada who worked within the home of a slave master and who severed ties with his or her cultural-racial heritage. It was a term used to describe a black person who supported the continued marginalization and enslavement of black people. In the opening lines of his blog post Rancourt writes, “February is Black History Month in Canada and the US. U of O Watch believes that it is the right time not only to honour Black Americans who fought for social justice against masters but also to out Black Americans who were and continue to be house negroes to masters.” Not only does U of O Watch not acknowledge African Canadian identities, it claims to “out” black Americans who are still “house negro” to masters. Black Canadians have a distinctive and complex history that is different to that of the United States. We are not “house negroes” because we actively fight for and continue to rigorously advocate for equality and the advancement of black people.

The SAC Report entitled, “Mistreatment of Students, Unfair Practices and Systemic Racism at the University of Ottawa” documented a finding of systemic racism using undefined data and an unrepresentative sampling of the population. In her assessment Professor St. Lewis stated, “the fact that the report did not succeed in its methodological attempts does not mean that there is not a problem that should be addressed.” She further stated, “when the pool of subjects to be examined is so small it is critically important that the data is evaluated cautiously and evaluated carefully…this does not appear to have been the case here.”

Professor St. Lewis has never stated that there is no racism at the University of Ottawa. The very first recommendation in her evaluation report calls for an independent assessment to determine whether systemic racism plays any part in the Academic Fraud process. As we understand it, her point is that the SAC Report is methodologically flawed and misses the opportunity to meaningfully address structural racial discrimination at the university. As Professor St. Lewis asked in her first recommendation, we support the call for an independent assessment of the academic fraud process to “determine whether systematic racism plays any part in the Academic Fraud process” and an account of what actions SAC has taken since its report was released.

We, BLSA Ottawa, know racism to be a multi-dimensional and nuanced subject area. We firmly plant our roots in anti-racist politics. However, this does not mean that a report that is wanting of substance is to be endorsed because we are people of colour. Students would benefit from an in-depth investigative process to lend credibility to any claim of systemic racism. To declare that the only black female English Common Law professor acted like a “house negro” for merely pointing this out is reprehensible; and we condemn it in the strongest possible terms. Professor St. Lewis has been the strongest and longest-standing mentor available to black law students from Vancouver to Halifax, including here in the National Capital (Region) for over 20 years.

The United Nations declared 2011 to be the International Year for People of African Descent. We, BLSA Ottawa, stand in full solidarity with Professor Joanne St. Lewis, and call on all law students, lawyers and community members to stand united with the black community in our collective effort to oppose all instances of racial discrimination.

Taiaiake Alfred: The Psychic Landscape of Contemporary Colonialism

Tuesday, November 8, 2011

2011-2012 Aboriginal Conference Series at the University of Ottawa presents:

Taiaiake Alfred, November 9, 2011 The Psychic Landscape of Contemporary Colonialism Where: TBT083 - Tabaret Building, 550 Cumberland, Room 083 When: 12-2 pm

Ontario needs new sex education curriculum to help protect children’s human rights

Monday, November 7, 2011

Discrimination. It involves treating people negatively because of their race, age, sex, religion, sexual or gender identity. It's a word, that as Canadians, we rarely apply to ourselves. Instead, we like to think that we uphold diversity as an integral part of the fabric of our society. This is not the case in Ontario public schools.

Imagine if tolerance for racial diversity was no longer part of the elementary school curriculum in Ontario public schools? What if, for instance, racial slurs were no longer shunned? Canadians would rightly be worried about the repercussions for children of colour and their families in our publicly funded schools. While racial slurs are shunned in public schools the term ‘gay’ is frequently used as an epithet.

Our curriculum must provide equal support for youth who belong to sexual minorities, and to children from families that include sexual minorities. Homophobia and racism are both forms of discrimination. We should teach grade three students in Ontario that sexual and gender diversity, like racial diversity, are integral parts of the fabric of Canadian society. The freedom to live without discrimination because of your race or sexual orientation are human rights in Canada.

Race and sexual orientation are both protected characteristics under Canada’s constitution. Neither has priority; there are no equality rights that are more or less protected than others. Why, then, is there such an uproar when elementary school teachers are asked to teach our children about equality for sexual minorities? Simply put it is because the equality interests of sexual minorities are frequently treated as less important than others.

Critics would have you believe that by excluding sexual minorities from the public school curriculum we are protecting our inherently straight children from the threat of ‘recruitment’ into a ‘deviant lifestyle’. Haven’t we moved beyond such hollow claims? Extensive international research has concluded that belonging to a sexual minority is not a lifestyle choice, it is an unchangeable personal characteristic like race or ethnicity. One cannot be recruited into being gay, anymore than one can be recruited into being South Asian. The fear of ‘recruiting’ is merely a mask for homophobia, what is really at stake here is the health and human rights of Ontario public school students.

Who is most impacted by treating sexual minorities as less worthy of tolerance and human rights protection? Youth who belong to sexual minorities, and children whose families include sexual minorities. Recent research conducted across Canadian public schools shows that one in four sexual minority students have been physically harassed about their sexual orientation. Three-quarters of sexual minority students feel unsafe in at least one place at their school, such as change rooms, washrooms, and hallways. Half of straight students agree that at least one part of their school is unsafe for sexual minority students. 46 percent of gay and lesbian youth have attempted suicide at least once. The average age of a first suicide attempt is 13 years.

Excluding sexual minorities and their families from the public school curriculum is not going to make them disappear. Silence on issues of sexual and gender diversity can only serve to isolate sexual minorities, and to normalise and perpetuate discrimination.

The introduction of sexual minorities and their families into the elementary school curriculum is widely discussed as a moral issue, because of its inclusion in the sex education curriculum. This criticism is premised on the idea that discussion about sexual minorities necessarily involves discussion about sex. However, belonging to a sexual minority is no more and no less about sex than being heterosexual. Sexual minorities and their families suffer homophobia while they are grocery shopping, learning in public schools, and playing at the playground, places where sex is completely absent. Talking about sexual minorities in elementary school is in large part talking about identity, families, relationships and inclusion rather than sex. It is an issue of human rights, not of sexual morality.

Homophobic bullying and harassment in Canadian public schools is at a crisis level. The Ontario government must introduce progressive school curriculum to begin to turn the tide. Recognising the existence of Canadians who belong to sexual minorities can only help to ensure that human rights in Canada are meaningful for us all.

Angela Cameron is an Assistant Professor in the faculty of Law at the University of Ottawa.

Feminist professor comments in MacLean's

Tuesday, October 25, 2011

See Professor Constance Backhouse's commentary on the recent Supreme Court of Canada nominations in MacLean's magazine.

SCC Appointments

Wednesday, October 19, 2011

Ok – I am officially annoyed. There has been a lot of froth and fury over the latest two appointments to the Supreme Court (oops, sorry, “nominees”) and in the midst of some very legitimate criticism I think some people have gone a bit too far. This renders me in the odd position of defending the choices of a government whose overall approach to the judicial function is one which I reject.

First, some background. On Monday, the Prime Minister announced that, after receiving a (confidential) short list of six names from an ad hoc committee of MPs (with a majority of Conservatives) he had decided to nominate Justice Michael Moldaver and Justice Andromache Karakatstanis to fill the vacancies left by Ian Binnie and Louise Charron. Both currently sit on the Ontario Court of Appeal: Justice Moldaver since 1995, Justice Karakatstanis since 2010. Justice Moldaver is a noted criminal law specialist (of whom there are a number on the OCA) who made waves in 2006 with a speech pointedly criticizing the defence bar for mounting inflated Charter challenges to drag out criminal trials. Justice Karakatstanis is much less known, at least among the legal community, but she had a long and successful career in the civil service (including a stint as Deputy Attorney-General) before being appointed to the Ontario Superior Court of Justice by Prime Minister Jean Chretien in 2002.

When I first heard the news, I will admit that the names were not ones I had expected. Yet, these are both members of an eminent court of appeal, with broad and varied experience in the law. Given comments from the Conservatives over the last six years I was relieved that the Prime Minister appeared to stick to more trodden paths and not choose this moment to make a “statement” by appointing a radically conservative jurist (or lawyer) who, say, rails against the living tree theory.

It didn’t take long, though, for the grumbling to start. Justice Moldaver is criticized for that speech, and for tilting against the rights of the accused (which, aside from being an overgeneralization, obscures the fact that he hardly operates on his own, but must persuade a majority of his colleagues in order to prevail). Justice Karakatstanis is openly criticized as lacking merit, or, at least, not being as good as some of her colleagues. Names like David Doherty and Robert Sharpe are openly offered as far superior choices.

This is a neat trick, for it is difficult to respond without appearing to diss another jurist. Who on earth wants to attack Bob Sharpe? Certainly not me. May I just say, though, that “merit” is a subtle category not nearly as capable of such rigid labelling as some of my colleagues seem to suggest? And that “merit” in the sense of “best qualified to serve on the Supreme Court” is even more so?

In a sense, we are all trying to read tea leaves. It is difficult to know how, exactly, any individual will fare in the Supreme Court’s rarified corridors. There have been “superstars” on paper who turned out to be duds, or at least, not nearly as influential as we might have wished. And, of course, there are those candidates who, against the critiques I have heard over the last few days, likely were not the obvious choice but who had such an impact it is difficult to imagine the Court without them. Gerald Le Dain. Bertha Wilson. Ian Binnie. John Sopinka. Ivan Rand (appointed directly from government to the position of Chief Justice!)

And so, against the critiques of the process (with which I heartily concur) I issue a plea for a slightly broader understanding of what makes a truly great judge, and an acknowledgment that, in the end, we simply will have to wait; that judges can surprised, excite and disappoint in equal measure; and do not exist as neat categories of legal excellence.

Carissima Mathen is Professor at the University of Ottawa Faculty of Law.

Too Soon to Say: On the Gender-Balanced Bench, Feminist Criticism and Justice Karakatsanis

When Prime Minister Stephen Harper (finally) announced yesterday that Ontario appellate judge Andromache Karakatsanis will fill one of two vacancies on the Supreme Court of Canada, Kirk Makin, the Justice Reporter for the Globe & Mail, concluded that her appointment “would forestall feminist criticism by maintaining the court’s complement of female judges at four.”[1]

Sorry Mr. Makin; we’re not that easy to shut up.

Critiques by feminists and other equality-seekers run deeper and are far more diverse than calls for formal gender parity at the Supreme Court. We want women on the bench for symbolic and substantive reasons,[2] yes, but we are not operating under the delusion that female-ness is a proxy for feminist, nor that every female judge will be a champion of equality. Feminist critiques emphasize the importance of diversifying the Supreme Court beyond the dimension of gender by including men and women from visible minority groups and other marginalized communities of identity, because doing so would improve the quality of decision-making and the democratic legitimacy of the Court.[3] Feminists are concerned not only with the personal attributes and life histories of judges, but also with their records of decision-making and what past judgments indicate about their unique understandings of complicated social-legal concepts like systemic discrimination, stereotyping, and substantive equality. How is a new judge likely to engage in equality analysis under section 15 of the Charter? How might she approach a case of workplace harassment based on allegations of institutional racism? What about cases of competing rights like religion and expression? Does she have experience adjudicating cases dealing with Aboriginal legal issues, human rights or international law?

When it comes to Justice Karakatsanis, it is near impossible to anticipate answers to these and a host of similar questions likely to be of interest to feminists and equality-seekers. While we know something of her personal background as a trilingual Greek-Canadian woman, her judicial persona remains largely a mystery, and her slim file of judgments tells us little about her decision-making style or likely approach to equality issues.[4] This uncertainty – in combination with Karakatsanis’ connections in the Conservative government – may be cause for concern for many feminists, particularly given that a number of controversial cases on issues including sex workers’ rights and euthanasia are currently snaking their way through the lower courts in Canada.

The justices of the Supreme Court possess enormous power in this country, and it is too soon to say how Karakatsanis might wield that sword when it comes to equality. A gender-balanced bench is a valuable good, but is insufficient to allay the diverse concerns and critiques of feminists and equality-seekers. It remains to be seen what the new gender-balanced bench will mean in practice for equality in Canada, yet one thing seems certain: feminist criticism will not be forestalled by gender parity alone.

Jenna McGill is a Professor at the University of Ottawa Faculty of Law.

[1] Kirk Makin, “Harper to appoint Ontario judges Karakatsanis and Moldaver to Supreme Court: reports”, The Globe & Mail (16 October 2011) online: The Globe & Mail .
[2] See e.g. Madame Justice Bertha Wilson, “Will Women Judges Really Make a Difference?” (1990) 28 Osgoode Hall LJ 507; and Dahlia Lithwick, “The Fairer Sex: What do we mean when we say we need more female justices?” (11 April 2009), online: Slate .
[3] See e.g. Diana Majury, ‘‘The Charter, Equality Rights, and Women: Equivocation and Celebration’’ (2002) 40 Osgoode Hall LJ 297.
[4] Further information about Justice Karakatsanis’ past judgments is available as part of the dossiers provided to members of the Ad Hoc Committee to Review the two Nominees for the Supreme Court of Canada, online: Office of the Commissioner for Federal Judicial Affairs Canada .

Monday, October 17, 2011

According to CTV one of the two upcoming nominees for Canada's Supreme Court Justices will be a woman. Justice Andromache Karakatsanis is bilingual and has a long record of public service, having served as deputy attorney general and secretary to cabinet and clerk of the executive council. For more information click here.

Statement from the Black Law Students’ Association of Canada

Friday, October 14, 2011

In 1892 the degrading depictions of a song-and-dance routine where a white man impersonated an old, crippled Black slave that he knew named Jim Crow created what we now call blackface. The structures of these minstrel shows have changed over time. However the images of blackface and the content continue to plague our societies, most recently in Montreal as captured by a past president of our national organization.
We, the National Executive of the Black Law Students’ Association of Canada, stand in solidarity with the Montreal Black and Jamaican communities during this troubling time. We affirm that blackface was not appropriate in 1892 and most certainly is not now 119 years later.

Prior to the Civil War, pro-slavery supporters used the racist stereotypes depicted in minstrel shows as a way of countering the abolitionist movement. Those who wore blackface reportedly defended slavery and used blackface to present denigrating stereotypes of Black people. Following emancipation, the blackface mask continued to be worn in performances that have unfortunately served to define the meaning of blackness for many who by choice or geography had little contact with Black people.

Blackness is not a characteristic that can be reproduced by burnt cork or paint nor can it be represented through the negative cultural attributes that are perceived to be true by media misrepresentations. In understanding the social and historical underpinnings of the blackface incident at the school of Hautes Études Commerciales a professor from McGill University, Charmaine Nelson articulates:

In one fell swoop, this student performance maligned various groups on the basis of race, nationality, religion, language and culture. The students not only vilified and marginalized black people in general by “blacking up,” but also took underhanded swipes at the entire nation of Jamaica (carrying the flag and wearing the national colours), while criminalizing blacks as pot-smokers (chanting “smoke more weed”), ridiculing Jamaican patois (chanting “Yeah mon”), equating the use of marijuana in the religious, spiritual and meditative practices of Rastafari with getting high and partying for the hell of it, and finally, some even wearing hats with fake locks attached (a problematic appropriation of a black hair aesthetic).

We, the next generation of lawyers, professors and professionals, depend on our educational institutions to be proactive in ensuring that our spaces of learning align with the methodologies of “safe space”. As the gatekeepers of higher education, it is expected that all Canadian Colleges and Universities strive for substantive equality for all who attend their respective institutions.

We add our collective voice to the loudening chorus expressing outrage at this most recent incident of racial bigotry and commend the actions and hard work of Montreal's Black student community in raising awareness about the wounds and indignities of historical and contemporary racism.

One of BLSA Canada’s objectives is to encourage law schools, legal fraternities and associations to utilize their expertise to initiate change within the legal system that will make it more responsive to the needs and concerns of the black community. We challenge you to take this a step further. The United Nations declared 2011 to be the International Year for People of African Descent. This offers a unique opportunity to work together to advance the political, social and economic interests of the Black community domestically and internationally.

Collectively we should seize this opportunity to educate by ensuring that diversity promotion and anti-discrimination policies are implemented and enforced in all of our institutions. This is only one way we can begin to remove of systemic barriers. We hereby call on all Black law students and allies to become active with your local BLSA Canada chapter and to stand united against all forms of racial discrimination and note that we are STRONGER TOGETHER.
Designed by Rachel Gold.