In its judgement on the constitutionality of a unilateral declaration of independence by Quebec, the Supreme Court claimed to be guided by the implicit or explicit constitutional principles of democracy, federalism, rule of law, and respect for minorities. French-English duality, as part of a “multination” conception of Canada, was not among these, despite being crucially implicit in the Court's reasoning. Had the principle of duality been articulated, it would have enhanced the theoretical cohesion of the judgement; more importantly, it would have furthered a necessary dialogue outside Quebec, insofar as national reconciliation requires the recognition of Quebec's distinctiveness by the rest of Canada. The secession reference was therefore a significant opportunity missed.

In the biblical book of Leviticus, the whole life of the Hebrew people is codified under the aspect of purity and impurity, and the reintegration into purity. When read in the light of gender, these prescriptions show that women are twice as impure as men, while their monetary value is half. Using the semiotic approach developed by A. J. Greimas, this study shows that, beneath the religious discourse obscuring this valuation, is an equally gendered ideology. The source of this valuation is not the foundational events which engender mosaic law, but its roots are to be found in deeper mythical ground. For the condition of women to change, the issue of their impurity—inferiority must be treated at this level. A striking example illustrating this argument is the persistence of purification rites related to the menstrual cycle in modern Orthodox Judaism. Over the course of centuries, the code that contains them has become obsolete. Nevertheless, they remain in place through successive reinterpretations, which do not address the real reason for their existence.

The Nunavut Land Claim Agreement commits federal and territorial governments to the recruitment and training of Inuit for positions throughout government. In the justice sector, there is currently a major shortage of Inuit lawyers or future judges. However, there also appears to be a fundamental mismatch between what existing law schools offer and what Inuit students are prepared to accept. A northern-based law school might remedy some of these problems. However, support for a law school requires un-thinking certain key tenets of legal education as we know it in Canada. In particular, it may require a step outside the university-based law school system. Universities appear to be accepted as the exclusive guardian of the concept of academic standards. Admission standards, in particular, serve as both a positivist technology of exclusion, and a political rationale for the persistence of majoritarian institutions as the major means of training members of disadvantaged communities. Distinctive institutions – eventually working with university-based law schools – have the potential to help bridge the education gap between Inuit and other Canadians. In so doing, they have the potential to train a critical mass of Inuit to meaningfully adapt the justice system to become a pillar of the public government in the Inuit homeland of Nunavut.

The relationship between scientific knowledge and legal discourse is raised once again by a recent decision of the Supreme Court of Canada, a case involving a young Aboriginal woman who was pregnant and ordered by the court to remain in a drug treatment program at a health center until the baby was born. Her glue-sniffing habit was deemed dangerous to the normal development of the fetus. The Court held that her solvent-dependency did not justify the original court action, but both the Court and the various interveners disregarded the current state of our knowledge on the fetal syndromes. There is thus a continuing disconnect between the scientific understanding of fetal risk and the development of Constitutional law around women's reproductive rights. This paper reviews the case and follows it through the appellate process; we examine the research literature on fetal syndromes tracking the changes over time. Finally we comment on the interventions by the Winnipeg Child and Family Services, the Women's Health Rights Coalition, by The Canadian Civil Liberties Association, and both The Canadian Abortion Rights Action League and the Women's Legal Education and Action Fund.

This paper enlarges the discussion of normative systems by arguing that the professional domain is just as normatively “gendered” as any such systems at the societal level. Taking off from recent media discussion, the author underlines the extent to which the implicit normative systems of the work world are overwhelmingly male and she demonstrates how the currently accepted definitions distort our understanding not only of women's work but also of men's. She employs her recent research on women professionals (particularly architects and engineers) to argue that a variety of definitional norms of the professions are credible, but that these are differentially exclusive of women. She ends with a wide-ranging discussion of definitional criteria for feminists which would serve to ensure that women's modal experience within professional arenas is included to the same extent as men's, for women's contributions to the workplace can only be grasped if male normative approaches are abandoned.

The State's resistance to making prison law agree with the Charter of Rights and bring women's carceral conditions closer to the male norm is illustrated in a recent comparative research on 24 prisons for women in eight advanced countries. If that conclusion was not unexpected, despite the fact that the countries and establishments had been selected for being progressive and very ‘humane’ ones, and notwithstanding the relentless claims presented by feminist groups and human rights advocates, what came as a surprise was that avant-garde initiatives like mixed prisons, mother-and-child units, well-equipped modern programs in women's prisons proved to be, if possible, more gendering in their actual effect than old traditional male arrangements. Using materialist feminism and discourse analysis to interpret her data, the author concludes that women's incarceration is a powerful gendering strategy and a form of appropriation of women by State's apparatuses to men's advantage.

This paper examines changes in Canadian sentencing legislation between 1984 and 1997 in relation to M. Foucault's genealogy of discursive practices. Foucault suggested three regulatory practices which were associated with contemporary projects of governmentality: punishment, discipline and risk management. The legislative changes regarding sentencing in court and conditional release decisions are reviewed to assess the extent to which the various regulatory practices have been adopted. It is suggested that Canadian sentencing discourse has become increasingly bifurcated around a combination of risk management and disciplinary strategies which are presented in a context of denunciation. The character of this arrangement and several of its anomalous features are examined.

This paper gives an account of the implications of the Supreme Court of Canada's case-law to section 380 of the Canadian Criminal Code defining fraud. It scrutinizes the Supreme Court's construction of some of the constitutive elements of fraud such as dishonesty and prejudice caused to the victim. The author then tries to make apparent the implicit logic followed by the Supreme Court in this matter. He asks himself which values, social models, and practices the Judges want to put forward through their policy making in regard to fraud. Finally, the author contrasts the Supreme Court's rationale with different sociological perspectives stressing current practices of economic exchange and risk-taking by economic players, particularly by contractors. Among other things, the author tries to understand, in the light of sociology, what is dishonest enrichment, what economical risks are considered tolerable and what are natural hindrances to securing economic activities.

The Supreme Court of Canada has recognized the right to reproductive autonomy for women based on the right to liberty protected by section 7 of the Canadian Charter of Rights and Freedoms. Thus, it is a woman's choice whether to have children. It follows, therefore, that in the case of a violation of her reproductive autonomy, a woman has a right to compensation. It is in light of these principles that I analyze the wrongful pregnancy cases in Québec civil law. From a feminist analytical framework, I posit that Québec courts have effectively denied women the right to reproductive autonomy by awarding compensation for the cost of child-rearing only in cases where a difficult economic situation is evidenced by the parents. In so doing, the courts have not only refused to fully compensate women for the injuries caused to them, but they continue to reproduce the dominant pronatalist ideology in reproductive matters. This judicial reaction to cases of wrongful pregnancy is another example of the gendered dimension of law.

In this article, the authors carry out a documentary analysis of the stakes and debates surrounding the policies and practices of the recruitment of ethnicized and racialized groups within the Canadian police services. The analysis of the justifications set forth by the proponents of affirmative action in the police services as well as the identification of the questions which have prompted the debates, criticisms and hesitations regarding this policy bring the authors to conclude that the integration of minorized groups in the police services is less concerned with the redressing of inequities than with the development of a new process of racialization.

Legal method, or the way in which legal claims are processed, is an integral component of the law's authority to include, exclude and deny claims and experiences. This paper explores the issue of sexual orientation and the legal construction of family as it emerges in the decision of the Supreme Court of Canada in Egan v. Canada. The analysis includes a detailed consideration of the ways in which the Supreme Court of Canada incorporates assumptions about the nature of family life as a relevant factor in its assessment of the meaning of the word “spouse” under the Old Age Security Act. The process by which notions of the normal family become legitimized through legal discourse is deconstructed using the work of Mary Jane Mossman and Michel Foucault. Mossman develops an analytic framework which illuminates the ways in which legal method works to preserve the power of law and the illusion that law produces “truth.” Michel Foucault considers both the ways in which knowledge is produced as truth, and its integral links to power.

This paper shows the role of the courts in the advancement of gay and lesbian rights to be restricted to intervening when three conditions are present: after legislation has been felt by minority groups to be deficient; where stating principles rather than implementing them is involved, and when legislative modification is difficult to achieve because amendment of a rigid constitution is out of question, or in parts of the country where political conservatism has a similar effect. Decisions are grounded on equality, while other values put forward by gays and lesbians such as dignity, recognition, respect of identity and difference and social concerns will be endorsed only by dissenting judges, unless the majority is sure that their mention will have no practical consequence. However, this modest victory was not achieved at the cost of representing gays' and lesbians' interests or values as common with those of the dominant heterosexual majority. On the contrary it seems that the affirmation of the “right to difference,” centered on diversity, and the openness of this constructed identity might have led to a chain reaction starting with the evolution of public opinion as a consequence of lobbying and education by the gay/lesbian community, proceeding to create a new balance of power, more favourable to the gay/lesbian minority, and finally reaching more respect from courts and legislatures alike.

This paper deals with a crucial problem in feminist theory and in law, namely the issue of the “Woman/Women” category. Does the presence of a single man invalidate the label and remove the issues from the field of equality between the sexes? Moreover, in order to avail oneself successfully of the non-discrimination provision of the Canadian Charter of Rights and Freedoms, does one necessarily have to prove prejudice towards all women, or seek a remedy likely to improve the situation of all women? Is the category “Woman” necessarily universal and all-embracing? To answer these questions, the author deals with the relationship between women and men and concludes that this relationship is not one of absolute binary opposition, but rather of secular domination. The author then analyzes the category of Women in relation to society as a whole where women are often subsumed into minorities, absorbed into the family or collapsed into “Universal” Woman. Fully recognizing the arbitrary and artificial character as well as the deceptive and reductionist aspects of categories per se, the author observes nonetheless that the law obliges us to keep the category of “Woman” for as long as women will not have collectively attained an economic, legal, political, symbolic, etc. status equal to that of men collectively.

The limits of the normative nature of law may be illustrated in the current English Canadian context by apparently contradictory phenomena: legal defeats of welfare mothers (e.g. Masse and Falkiner), and the legal victories of lesbian mothers (Re K). Drawing upon Fine, this paper employs the analytic frame of form and content to analyse contradictions within the legal form, notably in respect of the definition of spouse and the regulation of relations of property and poverty, and the struggles of lesbian parents who have applied to the courts to formalize their relationships to their children by way of adoption, and who, in so doing, have challenged the normative content of spousal relations. In analysing law as a gendering strategy, it is necessary to be mindful that law may not be the dominant site through and in which gender relations are constructed, regulated, reconstructed, or resisted. In this paper, the author examines and analyzes the contradictions in the legal form that have been mobilized, the ‘stirring up’ of the content that has been done, and the constraints and limits that shape the results.

The 1990s inaugurated a new era of policing the border, one in which a variety of legislative initiatives were introduced to regulate more tightly the flow of immigrants and refugees to Canada. Border control is closely linked to the internal policing of people of colour, stigmatising and monitoring such bodies in ways that clearly establish their subordinate status in the nation. In this article, I reflect on the practices involved in the policing of the border through an exploration of how individuals participate in, and experience, these practices. Specifically, I describe my own experience of how an individual judge performed the role of the imperial patriarch in a trial of a racial minority woman lawyer charged with immigration fraud. I do not make an empirical claim that the case I explore demonstrates racism and little else. Rather, my central concern is to describe the everyday performance of domination as it occurs in this trial. I seek to illustrate the kinds of things individuals say and do when they engage in making Canada White through the law and to suggest that such individual performances, in this case of hegemonic masculinity, are part of a national story of belonging, a story in which people of colour are marked as degenerate and white subjects are the bearers of culture and civilization. In the second half of the paper, I demonstrate this national mythology as it is expressed by elites.