Law Commons^™

Rich Dad, Gay Dad: The Wealth Traps Of Gay Fatherhood, Aloni Erez

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While legal and societal progress has enabled gay fathers to form families, there remains a critical blind spot in our understanding of their financial wellbeing. Specifically, there are indications that a wealth gap may exist among gay father households. This article introduces a novel taxonomy of the mechanisms that likely contribute to a wealth gap for these households, including surrogacy and adoption costs, legal recognition expenses, parental leave policies, discrimination in housing and borrowing, and limited support from families of origin. These obstacles reflect the structural features and prejudices that disproportionately affect households led by non-heterosexual fathers. The article highlights …

Workplace Sexual Harassment: Assessing The Effectiveness Of Human Rights Law In Canada, Bethany Hastie

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This report analyzes substantive decisions on the merits concerning workplace sexual harassment at each of the BC and Ontario Human Rights Tribunals from 2000-2018, with a view to identifying how the law of sexual harassment is understood, interpreted and applied by the Tribunals’ adjudicators. In particular, this report examines whether, and to what extent, gender-based stereotypes and myths known to occur in criminal justice proceedings arise in the human rights context.

This report examines substantive decisions on the merits for claims of workplace sexual harassment from 2000-2018 in BC and Ontario. The limitation to substantive decisions allows for a greater …

Gendering Islamophobia To Better Understand Immigration Laws, Catherine Dauvergne

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This paper examines two recent developments in immigration law in Western liberal democracies: security exclusions and forced marriage provisions. It aims to consider how both of these settings are influenced by a pernicious Islamophobia and by gender. And, of course, by the intersection that creates a gendered version of Islamophobia. The overarching aim of the work is to consider whether and how human rights arguments are likely to be effective in immigration law. The work proceeds by developing the ideas of ‘unknowability’ and ‘unintelligibility’ as two ways to describe how Western law responds to Islam, and in so doing, contributes …

Gendered Border Crossings, Efrat Arbel

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Nine years after the implementation of the Canada-US Safe Third Country Agreement (STCA), this chapter examines the STCA while asking the question: what about gender? How have initial concerns about the STCA’s adverse gender impact mapped onto the current, much-altered landscape of Canadian refugee law? The chapter revisits findings made in Bordering on Failure, a recent report I co-authored about the STCA, in an effort to read gender into its absence. I begin by charting an overview of the STCA’s operation and effect to provide context for discussion. I then revisit the central findings made in Bordering on Failure, paying …

Introduction: Gender In Refugee Law: From The Margins To The Centre, Efrat Arbel, Catherine Dauvergne, Jenni Millbank

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Questions of gender have strongly influenced the development of international refugee law over the last few decades. This volume assesses the progress towards appropriate recognition of gender-related persecution in refugee law. It documents the advances made following intense advocacy around the world in the 1990s, and evaluates the extent to which gender has been successfully integrated into refugee law. Evaluating the research and advocacy agendas for gender in refugee law ten years beyond the 2002 UNHCR Gender Guidelines, the book investigates the current status of gender in refugee law. It examines gender-related persecution claims of both women and men, including …

La Culture De La Protection Des Droits Fondamentaux En Droit Canadien Des Réfugiés: Un Examen Des Affaires De Violence Familiale, Efrat Arbel

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Cet article examine les cas canadiens de droit des réfugiés impliquant de la violence familiale, analysés par le biais d’une comparaison avec les cas de stérilisation forcée et de mutilations génitales. Parcourant 645 décisions publiées, il suggère que les arbitres canadiens ont en général adopté différentes méthodes d’analyse dans le cas des réfugiés de violence familiale, par rapport aux autres affaires. L’article soutient que les arbitres canadiens reconnaissent rarement la violence domestique comme une violation des droits en soi, mais au contraire, ont montré une prédisposition générale à reconnaître des situations violence domestique dans la différence culturelle. Autrement dit, les …

The Culture Of Rights Protection In Canadian Refugee Law: Examining The Domestic Violence Cases, Efrat Arbel

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This article examines Canadian refugee law cases involving domestic violence, analyzed through a comparison with cases involving forced sterilization and genital cutting. Surveying 645 reported decisions, it suggests that Canadian adjudicators generally adopted different methods of analysis in refugee cases involving domestic violence, as compared with these other claims. The article argues that Canadian adjudicators rarely recognized domestic violence as a rights violation in itself but, instead, demonstrated a general predisposition toward finding domestic violence persecution in cultural difference. That is, adjudicators tended to recognize domestic violence claimants not as victims of persecutory practices but rather as victims of persecutory …

A Situational Approach To Incapacity And Mental Disability In Sexual Assault Law, Janine Benedet, Isabel Grant

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Prosecutions for sexual assault most often focus on whether the Crown has proven that the complainant did not consent to the sexual activity in issue, based on her subjective state of mind at the time of the offence. However, Canadian criminal law also provides that no consent is obtained where the complainant is incapable of consenting. In cases where the complainant has a mental disability affecting cognition or decisionmaking, prosecutors in Canada have been reluctant to argue that the complainant was incapable of consenting. In this article, the authors agree that claims of incapacity should be used sparingly, but contend …

‘Don't Read The Comments!’: Reflections On Writing And Publishing Feminist Socio-Legal Research As A Young Scholar, Emma Cunliffe

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This article responds to reviews written by Eve Darian-Smith and Mehera San Roque and published in Feminists@Law. Darian-Smith and San Roque's reviews focus on the contributions made by my 2011 book, Murder, Medicine and Motherhood. In this response, I have taken the opportunity to reflect a little on the experience of writing Murder, Medicine and Motherhood, and on its reception. In the first section, I trace the choices and unanticipated challenges that structured my research for Murder, Medicine and Motherhood. Both Darian-Smith and San Roque have commented on this methodology, and I have noticed that after publication, the scope and …

Gender Equality Rights And Trade Regimes: Coordinating Compliance, Pitman B. Potter

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Taken together, the symposium papers and presentations illustrate the rich diversity of perspectives and issues emerging from the discourse of Coordinated Compliance with regard to specific issues on gender equality and trade, revealing a fundamental concern over human well-being along with an abiding commitment to scholarly rigor.

Mère, Régine Tremblay

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Qu'est-ce qu'une mère en droit? Cette entrée encyclopédique explore de manière critique et transsystémique la notion de mère en droit, à la lumière des deux grandes traditions juridiques canadiennes.

The Sexual Assault Of Intoxicated Women, Janine Benedet

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This article considers how the criminal law of sexual assault in Canada deals with cases of women who have been consuming intoxicants (e.g. alcohol and or drugs). In particular, it considers under what circumstances the doctrines of incapacity to consent and involuntariness have been applied to cases in which the complainant was impaired by alcohol or drugs. It also reflects on problems of proof in such cases. Finally, it examines whether the treatment of this class of complaints tells us anything about the law’s understanding of consent, and capacity to consent, more generally, in the context of competing social understandings …

The Age Of Innocence: A Cautious Defence Of Raising The Age Of Consent In Canadian Sexual Assault Law, Janine Benedet

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In 2008, Canada raised the age of consent to sexual activity with an adult from 14 years of age to 16. This change was motivated, in part, by several high profile cases of internet “luring” of younger teenagers. This article considers whether raising the age of consent has had any benefits. It begins by discussing the history and development of age of consent laws in Canada. The justification for a statutory age of consent has shifted from one based on the age at which a girl is deemed to be sexually available to one based on her capacity to give …

Forced Marriage As A Harm In Domestic And International Law, Catherine Dauvergne, Jenni Millbank

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This article reports on our analysis of 120 refugee cases from Australia, Canada, and Britain where an actual or threatened forced marriage was part of the claim for protection. We found that forced marriage was rarely considered by refugee decision makers to be a harm in and of itself. This finding contributes to understanding how gender and sexuality are analysed within refugee law, because the harm of forced marriage is experienced differently by lesbians, gay men and heterosexual women. We contrast our findings in the refugee case law with domestic initiatives in Europe aimed at protecting nationals from forced marriages …

Forced Marriage And The Exoticization Of Gendered Harms In United States Asylum Law, Jenni Millbank, Catherine Dauvergne

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While claims of forced marriage or pressure to marry represent only a tiny portion of refugee claims overall, they provide an illuminating sliver reflecting the major recurring themes in gender and sexuality claims from recent decades. Refusal to marry is a flashpoint for expressing non-conformity with expected gender roles for heterosexual women, lesbians and gay men. This paper presents results from our study of 168 refugee decisions from Australia, Canada, the United Kingdom and the United States where part of the claim for refugee protection concerned actual or threatened forced marriage. In the present discussion, we highlight our findings from …

Making People Illegal: What Globalization Means For Migration And Law, Catherine Dauvergne

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This book examines the relationship between illegal migration and globalization. Under the pressures of globalizing forces, migration law is transformed into the last bastion of sovereignty. This explains the worldwide crackdown on extra-legal migration and informs the shape this crackdown is taking. It also means that migration law reflects key facets of globalization and addresses the central debates of globalization theory. This book looks at various migration law settings, asserting that differing but related globalization effects are discernible at each location. The ‘core samples’ interrogated in the book are drawn from refugee law, illegal labor migration, human trafficking, security issues …

Chief Justice Lamer's Leadership In Feminist Times, Catherine Dauvergne

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In this paper, the author constructs a feminist retrospective on Chief Justice Antonio Lamer's career in three stages. First, she reviews the content of his written decisions from a feminist perspective. Second, she looks at his position in a number of the key decisions for feminists, and finally she looks briefly at the evolution in Chief Justice Lamer's writing about sexual assault during his time on the bench. At each stage the author aims to clearly describe her methodology and evidence relied upon, allowing readers to reach their own conclusion regarding Justice Lamer's engagement with feminist legal argument.

Hearing The Sexual Assault Complaints Of Women With Mental Disabilities: Consent, Capacity, And Mistaken Belief, Janine Benedet, Isabel Grant

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Women with mental disabilities experience high rates of sexual assault. The authors trace the history of the criminal law's treatment of cases involving such acts in order to evaluate whether the substantive law of sexual assault is meeting the needs of this group of women. In particular, the authors focus on the legal issues of consent, capacity, and mistaken belief. The authors situate this discussion in the context of current debates in feminist and critical disability theory, grounding the theory in scholarly research on sexual assault of women with mental disabilities. In considering the law's treatment of sexual violence against …

Hearing The Sexual Assault Complaints Of Women With Mental Disabilities: Evidentiary And Procedural Issues, Janine Benedet

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When a woman with a mental disability makes a complaint of sexual assault, she must confront a criminal trial process that was not designed in contemplation of her as a witness. The requirements of repeated testimony under oath and the ability to be cross-examined are not always well-suited to the particular needs and capacities of women with mental disabilities. These problems are magnified by the tendency to infantilize women with mental disabilities, thereby diminishing their credibility and depicting them as hypersexual when they engage in any sexual activity. These stereotypes also manifest themselves in the application of evidentiary rules relating …

Little Sisters Book And Art Emporium V. Minister Of Justice: Sex Equality And The Attack On R. V. Butler, Janine Benedet

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Scholars and philosophers spend much of their time discussing what pornography means and whether it can be defined. This debate persists despite the fact that most men, regardless of their sexual orientation, seem to understand quite well what pornography is, and what it is for: they produce it commercially, buy it in magazines, rent it in videos, and search for it on the Internet. The pornography industry has the distinct advantage of selling a product that, in legal terms, is considered "expression," and therefore a product that has been declared worthy of constitutional protection under section 2(b) of the Canadian …

British Masculinities, Canadian Lawyers, W. Wesley Pue

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This paper explores the construction of early twentieth century Canadian legal professionalism as the workings-out of Britishness understood through the lenses of cultural history, cultures of imperialism, and gender relations. It provides a case study in the histories of professionalism in a settler colony.