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.

Annual Jane Doe Conference

Thursday, October 13, 2011

Jane Doe will be here at the faculty to deliver her annual lecture to 1st year students where she discusses her case, Jane Doe v Toronto Police and "The Politics of Rape." The date is WEDNESDAY, OCTOBER 26th, at 11:30-1:00 pm in FTX 147, 147A and 147B. The event is open to all 1st year and National Program students, and is particularly relevant to Torts and Criminal Law. Seating is limited: first come, first served!

Professor Mathen Tweeting Live from the SCC today

Wednesday, October 12, 2011

Professor Carissima Mathen is live tweeting now from the Whatcott hearing. You can follow her reports on Twitter at @cmathen

Live feed from SCC also available here.

Feminist Cafe tomorrow

Tuesday, October 11, 2011

"La psychochirurgie en question : une analyse des dossiers des patients/es labotomisés/es entre 1948 et 1956"

Isabelle Perreault, PhD

Chercheure invitée de la Banque de Montréal en études des femmes/Bank of Montreal Visiting Scholar in Women’s Studies

Université d’Ottawa/University of Ottawa
Mercredi 12 octobre Wednesday, October 12, 2011, 11:00
Pavillon Desmarais Hall, 55 Laurier E., salle/room 3105

Friday, October 7, 2011

Some Thoughts about the Insite Decision

The Supreme Court of Canada’s unanimous decision last Friday to order the federal Minister of Health to exempt the Insite supervised injection site from criminal drug laws is one of those heady moments that law professors live for. The case had everything: the Charter’s guarantee of “life, liberty and security of the person”; a pitched federal-provincial battle; the “war” on drugs; and the intimate, daily interactions at Insite that have saved or improved the lives of hundreds of the most vulnerable souls in our society.

At Insite – located in Vancouver’s downtown eastside (DTES) – drug users self-inject under the supervision of health professionals. For five years the federal government exempted Insite and its clients from drug possession and trafficking laws. In 2008, after the Conservative government refused to do so again, Insite’s operators and some of its clients launched the suit that eventually landed them before the Supreme Court of Canada.

The case raised two constitutional issues, one based on the “division of powers” and the other based on the Charter of Rights. The division of powers question concerned whether federal drug laws should apply even where they interfere with provincial health care (since it is generally recognized that treatment of addiction is a health care concern). The Supreme Court unanimously dismissed this argument, concluding that the provincial power over health care is not “immune” from the federal power to create crimes. Although unexciting for everyone except some of the aforementioned law professors (like me), the Court’s resolution of this issue has sounded a welcome note of clarity into an area of constitutional law that, left unchecked, could create undesirable legal vacuums.

The Charter question arose under section 7 which guarantees against “deprivations of life, liberty and security of the person” in ways that violate “the principles of fundamental justice”. Insite and its supporters argued that given the mountains of evidence which showed that Insite had a positive impact on addicts’ health and the surrounding community, the government’s refusal to extend the exemption was, simply, arbitrary (and, therefore, not consistent with fundamental justice). Some of the parties also argued that prosecuting addicted persons for their drug use is unjust because such persons are not really exercising a “choice", building on an earlier Court decision that criminal liability only attaches to “morally voluntary” behaviour). While the Court did not squarely address the issue of choice and drug use, it seemed sympathetic to the idea.

The Court flatly rejected the federal government’s stubborn insistence on maintaining a purely political preference (supervised injection is simply a form of drug use that must be punished) in the face of damaging evidence (supervised injection saves lives and is an integral part of overcoming addiction).

The Court first pointed out that the Controlled Drugs and Substances Act itself permits an exemption for a facility like Insite. Thus, even if in some cases the CDSA might deprive a seriously addicted person (or their health care worker) of “life, liberty and security of the person” the law allows for relief against “unconstitutional or unjust applications of the provision”.

But if the law is consistent with the Charter, the Minister’s decision was not. The purpose of drug laws is, in part, to deter drug use and to prevent harm. The trial judge in this case found that traditional drug laws have done little to reduce drug use in the DTES; that supervised injection reduces risk to users; and that Insite has not contributed to increased drug use or other harms in the community.

Given the overall context, the Minister’s refusal was arbitrary – it bore no relation to the federal law’s underlying purpose. The Court also found that the refusal was “grossly disproportionate” (another violation of fundamental justice) because its negative impact on section 7 rights far outweighed the minimal benefit of enforcing drug laws against Insite and its clients.

Will we see more facilities like Insite? The Court endorsed the trial judge’s findings that supervised injection can be an important part of a drug treatment strategy. Where a different facility provides similar benefits, the government must ensure that any refusal to exempt is consistent with fundamental justice (the government could get Parliament to simply remove the exemption, or even to invoke the Charter’s notwithstanding clause,but these are very remote possibilities).

One reporter asked me about the fear, raised by some of Insite’s critics, that supervised injections could pop up at places like Tim Horton’s. This is nothing more than fear-mongering. Insite is a serious health facility with extensive protocols following explicit provincial guidelines. The Supreme Court made it clear that its decision does not authorize just anyone to set up shop and offer supervised injections.

This is a momentous decision. It is extremely rare for the Court to find that the government has acted arbitrarily (which, after all, connotes behaviour that is capricious and unprincipled). The conclusion of gross disproportionality is also rare, and hints that in future cases a hard-line approach to drugs may be difficult to defend. Equally striking was the fact that the Court actually ordered the Minister to provide the exemption, known as the legal remedy of mandamus. Normally, even when they find executive decisions to be flawed the most that courts will do is render the issue back for reconsideration. The remedy issued here demonstrates that the Supreme Court found the government’s choices to be, simply, indefensible.

Carissima Mathen is a Professor at the University of Ottawa Faculty of Law
Designed by Rachel Gold.