When does “no” mean “no”?

Bianca Salive
JD Candidate 2020

The scene: You are sitting at home in your pyjamas watching your favourite show. Your phone buzzes and you see a message from your friends: “Let’s go out tonight!” You know you are not leaving the house, but out of politeness, you want to avoid an abrupt “no.” So you might say you are tired, or not feeling well. Regardless of the words you use, your response is interpreted as a “no.” This is because we accept these phrases as culturally normative ways of indicating refusal in social circumstances all of the time.[1]

So, why are we not able to accept these phrases when it comes to sex?

We often hear of sexual assault cases in which the victim did not give a clearly stated verbal “no.”[2] Overwhelming evidence of both physical and verbal disagreement might be available, but because of the absence of that simple 2-letter word, the victim’s lack of consent is less likely to be believed. Interestingly, we know why women choose not to simply say “no” to ward off sexual advances. According to the literature, women refrain from saying “no” to avoid upsetting a partner, to avoid feeling like a prude, or out of fear for the reaction.[3] Furthermore, it is conversationally unusual to respond with “no” any social circumstance that is unaccompanied by a mitigating factor.[4] As humans, we prefer to give an excuse that speaks to inability, rather than just unwillingness; that is, we are far more inclined to say “sorry, I have a midterm on Monday,” than we are to say “no, I want to stay home.”

In addition to being unrealistic and ignorant of the literature, requiring an actual “no” to demonstrate refusal, that is, expecting more refusal in a sexual context than anywhere else in life, does not reflect the legal standard for consent in Canada. In R v Park, for instance, Justice Dube reminds us that only a yes means yes when it comes to consent, an absence of “no” will not constitute consent.[5]

Finally, expecting more direct refusal in a sexual context is troubling because it advances two dominant rape myths. First, this expectation implies that any other way of refusing sexual contact other than saying “no” is inadequate. In the trial decision from R v Ewanchuk, the judge suggested that women should even go so far as to assert physical force to get the message across, rather than “resort to the courts” afterwards.[6] A similar message was echoed by Justice Camp in 2014, when he asked the complainant “why couldn’t you just keep your knees together?” insinuating that a physical act of rejection is more effective than a verbal one.[7]

Second, this expectation of direct refusal suggests that sexual consent can be a result of misinterpretation. If only women were more assertive in their verbal communication, they could avoid being raped.[8] This claim is both dangerous and onerous for victims, as it shifts the burden of the assault to them. Again, this is not consistent with the legal reality, which tells us that the burden is in fact on the accused to prove that they took all reasonable steps to ascertain consent.[9]

Taken together, continuing to expect direct refusal, to demand more from women in horrible situations than we do from others in our day-to-day lives, demonstrates an ignorance of the fact that culturally speaking, we very rarely use a flat out “no” to express refusal. More damaging still, this expectation flies in the face of legal standards and perpetuates rape myths. We must accept a realistic refusal standard when it comes to sex.


[1] Celia Kitzinger & Hannah Frith, “Just say no? The use of conversation analysis in developing a feminist perspective on sexual refusal” (1999) 50:3 Discourse & Safety 293.

[2] Robyn Doolittle, “Unfounded: Why Police Dismiss 1 in 5 Sexual Assault Claims as Baseless” Globe and Mail (3 February 2017), online: <https://www.theglobeandmail.com/news/investigations/unfounded-sexual-assault-canada-main/article33891309/&gt;.

[3] Hedda Hakvag, “Does Yes Mean Yes? Exploring Sexual Coercion in Normative Heterosexuality” (2010) 28:1 Can Women Studies 121.

[4] Supra note 1.

[5] [1995] 2 SCR 836, 99 CCC (3d) 1 [Park].

[6] [1999] 1 SCR 330 at 93, 169 DLR (4th) 193 [Ewanchuck].

[7] Sean Fine, “Judge in ‘knees together’ trial resigns after council recommends he be fired” (14 April 2017) Retrieved online: < https://www.theglobeandmail.com/news/national/judicial-council-recommends-justice-robin-camp-be-fired/article34249312&gt;

[8] Supra note 1.

[9] Ewanchuk, supra note 6.

Mothers in Law*

Angela Livingstone
JD Candidate 2019

Being a mum has always been hard, but perhaps more so in a time when everyone can openly judge from so many angles. We are regularly judged on how we birth our children, how they sleep and eat, the clothes they wear, and how we let them play. Significantly, we are judged on our participation in their lives, which feeds into perceptions about the quality of care we provide. Sensible people tell us to ignore this judgment and some days we are successful. But ignoring is easier said than done, especially since the voice we need to ignore is sometimes our own.

Why are we discussing motherhood? Because amplifying women in law includes supporting the mothers who are practicing law. Mothers practicing law pose an interesting challenge to the profession. We demand to be taken seriously as legal professionals, but increasingly, we also insist on being given time to participate in our children’s lives, to parent in a real, hands-on way. Thus far, efforts to be attentive to both have been underwhelming.

Given the lack of substantive change, it is useful to consider the challenges mothers face even in law school, and how they manage (or don’t). By being aware of the practical realities of women who have chosen to parent in this profession, we can reveal common concerns and hopefully develop strategies for change.

The following are some of the obstacles to, and benefits of, being a “law mum.”

1) We’ve had five kinds of problems before our 8:30 class and none of them are law related.

Most of us get up at an ungodly hour to get out of the door intact. Those of us with toddlers squish in some morning playtime. Those of us with bigger kids try to be attentive to the story-telling needs of our children while packing lunches, signing permission slips, and remembering to give the kids money for bake sales. Other morning obstacles include special themed school days, temper tantrums over mittens, a sudden decision to hate eggs, and of course we have to put clothes on. We will eventually fall out of the house, drop kids at daycare and school, and attempt to finish readings on the bus ride.

Many of us have worked full time before law school, so the routine is not new. However, with work, we likely turned off around 8:00pm the night before; law school, and indeed law practice, means we’ve read late into the night so we’re running on empty at the start of the day. This spices up the morning routine, especially since children can smell exhaustion.

Sometimes we won’t get to the class because there is no predicting when a tantrum will end, or when a kid will vomit on our shoes. Sometimes we’ll get half way to school, only to get a call saying the kid has a fever. If we have partners with forgiving jobs, we may be fine. If we don’t, we’re heading back home.

And sometimes we can’t manage the 8:30 class at all. Some of us are picking all of our classes based on the kids’ schedule, meaning we miss out on classes we’d love to take. Most of us can’t attend “make-up” classes because they don’t fit the pre-determined care schedule we already have in place, and changing care schedules costs money. Which we also don’t have, because the daycare costs we pay in order to go to law school can run anywhere between $7,000 to $15,000 per kid per year, depending on the age and stage of our children.

2) We feel isolated.

The ability to network is intimately tied to doing well in both law school and the general practice of law, and the networking starts early in first year. Unfortunately, networking events occur between 5:00pm and 7:00pm, or what is known in most of our homes as “dinner time.” These are precious hours when we need to connect with our kids, make dinners, get the homework and laundry done, or drive children to piano lessons. Some of us also need to be home for bedtime, to read the stories, get some evening snuggles, and try to make the house seem stable for our kids. In the end, the demands of home mean we miss out on a lot of good lectures, socials, and impromptu beverages, which can leave us feeling isolated and worried about missed career opportunities.

3) Sometimes we fear that we made the wrong choice.

Even though we’ve often had more time to mull over the decision to go into a career in law, we are likely to question the decision as school progresses. This is because finding the balance between being a good student and being a good parent is impossible. Both require a lot of time and sadly time is finite. If we work on the weekend, we miss taking our kids to the library, or for walks in the woods. If we take the kids on an adventure, we’ve lost valuable study time. The guilt is gut wrenching and ever-present.

Particularly challenging is when our kids need more time than usual. Some of our kids are teenagers who need sudden bursts of emotional support. Some of our kids are bullied and need long conversations about the grim realities of elementary school. All of this means time.

People will say supportive things like “this is good for the kids to see” and “they’ll be so proud someday.” Which is true and kind. But in the moment, when we miss another field trip or school performance, or when our kids are mad because we have to work through another Saturday, it is hard to remember that this is for a good cause. In the end, we regularly feel like we’re succeeding at nothing, which can leave us wondering why we’re doing this in the first place.

4) We are grateful that we have built in perspective.

For all of the challenges, being a mum in law school, and indeed in law practice, has one key advantage: built in perspective. We have to turn off law mode for at least part of the day in order to parent. We can’t worry about everything at school or at work because of our daily reminder that there is more to life and the reminder needs someone to play a round of Candyland.

And maybe this is where the change should start. Having established ourselves with a family already, maybe we are in the best place to demand that law firms get some perspective. The reality of our lives as people in relationships of care is an excellent example of why firms must do more than pay lip service to work life balance, or appreciating our life experience, if they want to retain us. Because in the end, we are a valuable addition to the profession. But none of us should have to battle guilt or feel as though we are failing at everything in order to parent and practice well.

*A special thanks to all of the mums in law who helped contribute their thoughts and stories to this post. You are loved and supported.

Makeovers and Mishaps: Some thoughts on Bill C-78

Angela Livingstone
JD Candidate 2019

Almost 33 years later and yet somehow the Divorce Act of 1986 still does not contemplate the particulars of family breakdown, complicated as it is by factors such as domestic violence, an unequal distribution of power, and intersecting relationships of care. Absent legislative guidance, Canadian courts have inserted their own interpretation of how to structure the family after breakdown. The results have been inconsistent and in some cases deeply troubling.[1]

A substantial makeover is clearly overdue and it comes in the form of Bill C-78.[2] Among the recommended amendments to the Act, Bill C-78 proposes to shift the language on post-separation childcare away from “custody,” “custody order,” and “access,” replacing these terms with “decision-making responsibility,” “parenting order,” and “parenting time.”[3] The bill also proposes to provide guidance by including a non-exhaustive list of factors to consider in determining the “best interests of the child” (BIOC). As well, the bill acknowledges the impact of family violence by outlining a working definition to be included in the Act, and tying this definition to the BIOC.[4]

The proposed changes are far from inconsequential; indeed, the amendments are an important step closer to addressing at least some of the concerns with the current legislation. Yet the amendments have limits, four of which I note in this post. To begin with, the transformative potential of a shift away from custody and access is likely overstated. The “highly charged” nature of “custody” and “access” is often cited as a reason to move away from these terms; however, in practice it is likely that any term that denotes a post-separation parenting arrangement of some kind will be highly charged by virtue of what the term represents.[5] Certainly, the parent who is assigned “time” rather than “responsibility” is likely to feel they have lost.

Second, while the proposed list of factors to consider in determining the BIOC is a very positive development, without guidance as to the weight of these factors, considerable discretion still rests with family court judges. “History of care” and “family violence” should be clearly prioritized. Prioritizing these two factors in particular would increase predictability in the BIOC test, but equally important, this prioritization would require the court to first reflect on the “historical arrangement of caregiving,” [6] and to consider the unique day-to-day caring realities that have shaped a child’s life. Understanding the history of care, and how it has been affected by family violence provides much needed context for the proper evaluation of other factors, such as the appropriateness of asking that a victim of domestic violence facilitate a relationship between her abuser and her child.

Third, the continued inclusion of a “maximum contact principle” serves as an obstacle to determining the actual best interests of children. It also limits the usefulness of the family violence definition by continuing to emphasize that more parenting time is best, without genuinely questioning the quality of care during that time. Certainly, maximum or equal time makes sense for healthy families, in which both parents support the children and parents are able to communicate and cooperate with each other in spite of their differences. [7] However, this is an ideal scenario, one that does not appropriately capture the lived experiences of many families at separation. The maximum contact principle also ignores the day-to-day caring realities of children prior to and during family breakdown; the principle assumes that care distribution is gender neutral, and that all parents are capable of identifying and responding to the complex physical and emotional needs of children.[8] Legislative reform that claims to be child-focused, and that claims to support evaluation on a case-by-case basis, cannot include a maximum contact principle.

Finally, the usefulness of a family violence definition is needlessly restricted by the lack of explicit acknowledgement of the gendered nature of family violence, or the intersecting factors at play with respect to said violence. However in this instance, given the limited ability of legislation to tackle systemic issues such as family violence, additional steps should be taken to properly attend to the fallout from divorce, steps that go beyond legislative reform. In particular, targeted education for legal professionals, especially decision-makers, should be required. This education must go beyond simply explaining typologies; it must explain gender-based violence, intersectionality, and the compounding effect of different relationships of power and what this means in the context of family violence. This education should also draw support from genuine consultation, should connect practice to real life, and should dispel myths and over-simplifications with respect to family breakdown. Moreover, this education should provide a deeper understanding of the relationships of care that shape the social, psychological, and legal lives of clients and their children.

In its current form, Bill C-78 is a positive step, but substantive change requires a more nuanced and holistic approach to family law than is currently contemplated.


[1] See e.g. Ulloa v Ulloa, 2016 MBQB 132 at paras 107–109 [Ulloa] wherein the Court ordered shared parenting and joint custody to “break the chains of fear and worry” in the children because of their fathers’ violent behaviour; EH v DM, 2018 PESC 38 at paras 58–61 wherein the Court ordered joint custody (albeit not shared parenting) in spite of the fathers’ violent behaviour towards the mother because it was determined that the children needed to see their father.

[2] “Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act”, House of Commons Debates, 42-1, Vol 148 (22 May 2018) at 19427 (Hon Jody Wilson-Raybould) [May Debates].

[3] Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act, 1st Sess, 42nd Parl, 2018 cl 1(7) (third reading 6 February 2019) [Bill C-78].

[4] Ibid, cls 1(7), 12.

[5] This point is also noted by Brenda Cossman in her 2001 report for the Department of Justice. Department of Justice Canada, An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access, by Brenda Cossman, Catalogue No 2001-FCY-2E (Ottawa: Family, Children and Youth Section, 2001) at 6.

[6] Susan Boyd, “Fathers’ Rights and Women’s Rights Advocacy” in Rosemary Hunter, ed, Rethinking Equality Projects in Law: Feminist Challenges (Portland, OR: Hart Publishing, 2008) 59 at 59.

[7] Nicholas Bala, et al, “Shared Parenting in Canada: Increasing Use but Continuing Controversy” (2017) 55:4 Fam Ct Rev 514 at 524.

[8] Boyd, supra note 6 at 68.

Professor of the Month: Vanessa Gruben

Each month, we feature a professor from the Faculty who supports and contributes to feminist legal thought.


Vanessa Gruben
Associate Professor
Interviewed by: Maja Petrovic

MP: Tell us where you started. What was your first job?

VG: My first law job?

MP: Any job!

VG: I went to law school here and I worked at the legal clinic as my first summer job. At the time they had an HIV/AIDS Division and so we provided all sorts of different types of legal advice to that community. It was great, I learned a ton! It was fantastic, a really great learning opportunity. I then took the legal aid course the following year. That was in the first summer after first year. In my second summer, I summered at BLG.

MP: What was your path to law?

VG: I have always wanted to be a lawyer but I was really interested in health issues, and the difficult legal and ethical questions around health. My undergraduate degree was actually a Bachelor of Science, in Life Sciences, which I completed at Queens. But I always knew I wanted to go to law school, so I was delighted when I got in. I have been lucky in that I have kept fairly close to my interests, and I have managed to keep on that track, while doing some other stuff of course– but this topic has always been part of my practice, from private practice to when I clerked. I have been really lucky in that sense.

MP: As a summer student at BLG, did your work focus on health law?

VG: Not really. As a summer student, I kind of worked on a little bit of everything. Although, I did do some work for the Patented Medicine Prices Review Board, which was interesting. The practices were less specialized than they are now, and I worked in General Litigation so my practice varied a lot.

MP: Did you know you were interested in the academic side of law then or did that happen later?

VG: It sort of evolved. When I was in law school, I always enjoyed doing legal research. I became more interested in it once I clerked, that that kind of career would be something of interest to me. But I didn’t go into law school thinking that I wanted to be an academic. It is really something that developed over time.

MP: What are you working on right now that you’re particularly excited about?

VG: There are so many things! The thing that is most exciting at the moment is my work on the regulation of Assisted Human Reproduction. We have new regulations, draft regulations, under the Assisted Human Reproduction Act that I am in the midst of putting a submission together on. They deal with the reimbursement of expenses to egg donors and surrogates, what those expenses should be, what can be reimbursed, how the process is going to work, the oversight and enforcement of the process and the framework, and so on. That is on the front burner at the moment. I also have a book, an edited collection, coming out next Monday on Surrogacy in Canada!

MP: What is the best thing about being a professor at uOttawa?

VG: Probably the students! I love to teach and love to work with law students, it is always interesting. It is great and is definitely the highlight of being a professor here at uOttawa.

MP: Did you always know you wanted to teach or did that gradually develop as well?

VG: That also gradually developed. When I was clerking I thought this might be something I might be interested in. Clerking tends to attract people who are interested in academia. I also practiced after I clerked, at McCarthys, and I taught the trial advocacy course while I was practicing. I enjoyed the teaching and the research, so that is how I figured out that teaching might be the next step for me in my career.

MP: Was Trial Ad the first course you’ve ever taught?

VG: Yes! Trial Ad was the first course I taught here at uOttawa.

MP: What about your free time? What do you like to do during your free time?

VG: In the winter, I downhill ski. We have a cottage, so I like to ski in the winter. I swim in the summer. I also really enjoy just spending time and hanging out with my kids.

MP: What else are you interested in outside of law?

VG: I play the piano, not particularly well any more, but I used to play the piano well. My family and I – we travel a ton! We just got back from Germany. We try to bring the kids to Europe about every year and a half, so we travel quite a bit. We also like to read, play games, and hang out at our cottage.

MP: If you had one piece of advice for us law students what would it be?

VG: Love what you are doing. Try to love what you do, and make sure to take care of yourself, it is important. Self-care is critical.


Professor of the Month: Heather McLeod-Kilmurray

Each month, we feature a professor from the Faculty who supports and contributes to feminist legal thought.

McLeod-Kilmurray, H

Heather McLeod-Kilmurray
Associate Professor
Interviewed by: Bianca Salive

BS: Tell us where you started? What was your first job?

HMK: My very first job ever actually happened to be law related, even before I had ever thought of law. It was updating a looseleaf business law book that I helped my dad work on. I made a lot of money doing a really boring thing. When I was 14 or 15, I was a foot messenger at a big law firm in downtown Toronto, before email and faxing. We would run between buildings and get signatures. It was good exercise and I really got to know the downtown core.

My first real law job was clerking for the Chief Justice for the Federal Court of Appeal. It was probably my favourite job ever, other than my current job.

BS: What was your path to law?

HMK: Ever since I was a little kid all I wanted to do was be a teacher and so many people tried to talk me out of it. When it came time, I applied to both teacher’s college and law school. I got into law school so I went there. I loved it right from the beginning. Even the subjects I didn’t love, I liked the idea of somebody giving me a question and finding an answer. I kind of felt like a detective. Even tax policy was interesting to me. There are so many social justice issues in so many aspects of law and I find that very fun and interesting.

I took environmental law in my JD, and then when I was clerking at the Federal Court I applied to Environment Canada. I worked there for 18 months and I loved it. Then I did my masters and PhD, which were both focused on environmental law.

BS: Did you know you were interested in the academic side of law then or did that happen later?

HMK: Being a law professor was my path to teaching. I thought it would be fantastic to be a professor because I could do all of the research work and the policy work while teaching at the same time. The year after I did my masters, I was living in England. I called the University of Sheffield and I ended up TA’ing four small groups on Friday afternoons. I looked forward to it every week. This was my first opportunity with teaching.

BS: How did that interest develop?

HMK: I always loved learning so much. I loved school. So I wanted to remain in the educational environment all the time. In teaching there is always a learning experience. You learn from trying to explain things, you realize gaps in your own knowledge, you’re always learning something new.

BS: What are you working on right now that you’re particularly excited about?

HMK: The big new thing happening over the last few years is the focus on food law. Food law has grown relatively recently and is just starting here in Canada. At uOttawa, we want to be part of this growth. My own interest in food law started because I work in environmental law, and I saw how often food law issues affected the climate. It’s talked about more often now, the circular relationships between food production and consumption, and how that affects carbon production. Climate change also makes it difficult to grow sufficient quantities of food. I noticed I was writing a lot about food law while doing environmental law.

Along with Nathalie Chalifour, I started to look at food law in relation to farming. Now I am working with Professor Chalifour and our PhD student, Angela Lee, on editing the first food law textbook in Canada. We also hosted the second annual food law conference in Ottawa last year. Angela and I also co-taught a food law course for the first time last winter. It had an environmental element and a justice element, but also covered intellectual property (trademark, copyright) and torts, for things like food fraud and class actions for bad food. Food law also involves a lot of administrative law on how regulation and enforcement of food rules and food safety happen. We also talked about cutting-edge technologies in food.

In the text, we talk about food and the particular implications for women and Indigenous peoples. We want to make sure there is gender-based analysis of food law policy to see how women are affected here and internationally. For example, Professor Bita Amani from Queens University talks about  the corporatization of breastfeeding through the promotion and sale of breast milk and alternatives, among many other feminist food issues. On Indigenous issues, there is growing awareness about issues of food sovereignty and challenges with Indigenous food security in both urban and rural areas. From the outrageous price of food in Northern communities, to access to fresh fruit and vegetables, there is great need for Canadian food policy to be aware of these social issues. It’s also about learning from Indigenous food systems and what this traditional knowledge could contribute to sustainable and just food policy in the rest of Canada.

It’s a good time to be working on these issues because the federal government is working on a national food policy, which we’ve never had. We’ve been attending consultations and trying to ensure that the current revisions to the Canada Food Guide incorporate sustainability issues. In terms of opportunities for students, we’ve met a lot of practitioners who are doing this kind of work but wouldn’t call themselves food lawyers. This is changing, and young lawyers with expertise in food law are needed, so we have a new Food Law Students Association at uOttawa, which is only one of a handful in Canada.

BS: What is the best thing about being a professor at uOttawa?

HMK: The students of course! You are always meeting new people with new ideas so it helps you stay current. It’s so rewarding to watch students learn, and to learn from them. I still learn new things form a torts course I’ve taught 13 times because of the students’ questions. I think our students in particular are very diverse and engaged.

We’re so lucky with our faculty here; our colleagues are all extremely smart and diverse and friendly. They’re very outgoing and mutually engaged. We collaborate a lot and learn from each other and it is a very positive environment. We have so many specializations in technology and international law and feminism, but all of us seem to come together around the social justice mission. Everyone seems to be united on this key theme that uOttawa is known for.

I also love the bilingualism aspect and being able to use both languages every day, as well as the dual perspective of common and civil law.

BS: One of your primary research areas is in ecofeminism – tell me more about that.

HMK: That’s a really interesting combination of feminism and ecological approaches to law. It comes from the radical feminist approach. Feminist legal analysis tries to look at underlying structures and causes of why women are discriminated against or disproportionately affected by laws and policies, and ecofeminism asks whether the same structures lead us to exploit the environment. Things like overemphasis on technology, industrialization, competition, cost benefit analysis – a lot of these structures that exploit women are the same ones that cause a lot of environmental degradation. The heart of it goes deeper than just ‘how does environmental law affect women differently’, although that is important too. We touch on it a bit in the food law course.

BS: What about your free time? Can you tell us your favourite book or movie?

HMK: One of my favourite books is kind of on the environmental theme but is easy reading. It’s called “Priceless: On Knowing the Price of Everything and the Value of Nothing.” It’s really interesting. It takes case studies of how we put value in some things and not in others. It’s very engaging and a page-turner, even though it’s a non-fiction book.

BS: What else are you interested in outside of law?

HMK: I love hockey. I have two boys who play hockey at a competitive level. I’ve never attempted playing but I should since I spend so much time watching it!

I also love traveling and music. I’m learning to play guitar and I have always played piano. We always have music on at home and we’re always going to performances. I like folk music a lot. One of my newest discoveries is a musician from Sarnia named Donovan Woods. I love Cat Stevens, and Simon and Garfunkel. I also try to listen to Spanish music as well. And of course lots of Canadian music like Joni Mitchell, Jann Arden, Bruce Cockburn and of course our Lynda Collins. I got to see Burt Cummings recently from the Guess Who and he really sounds almost as good as he always did.

I love languages, I’m always trying to learn new languages. I studied Russian for ten years and speak a little bit of Spanish. I’m getting better. Right now I’m working on my Gaelic, as my husband is Irish.

BS: If you had one piece of advice for law students what would it be?

HMK: It’s important to make sure you get the legal education that you want. Sometimes it’s easy and there are lots of courses in the area that you love. But if it’s not, there are so many opportunities for SPIs and directed research, or to take a course in a different department. Don’t let application forms and rules stand in your way. You should follow your own path and your own dream in law. Don’t listen to talk about what jobs you should take and what courses you should take. If you do what you love you’ll be happy doing it and that’s what you’ll be good at. There’s so many areas people don’t think exist because they don’t see them. There are not just the traditional eight or ten categories to choose from.

The other thing I always tell students is that if there are ever opportunities to combine things you want to do, do it. If you want to travel and get legal experience, go abroad for that experience. Look for ways of achieving several goals at the same time.


Welcome back!

Believe it or not, it is September again.

First, let me take this opportunity to welcome the new 1Ls. I hope orientation and the first week or two of classes have left you more optimistic and less terrified. Oh, you should definitely be a little terrified. But hopefully you are energized by the fact that you are about to have your mind bent in weird and wonderful ways.

Part of thinking about the law in weird and wonderful ways is thinking about how the law has a different impact on different populations. This year, UOAWL will continue with our mandate to draw attention to these differences, particularly as they pertain to women’s interaction with law and the legal profession. Upcoming posts will consider feminist perspectives on the decriminalization of opioids, the benefits and potential pitfalls of recently proposed changes to the Divorce Act,  feminist critiques of the Immigration and Refugee Protection Act, and the practical problems women face in a billable hours environment.

As always, UOAWL is interested in showcasing the important work of students. To this end, please send us your work! Posts should be 500–750 words in length, and can cover any topic concerning feminism and law. Submit to: alivi009(at)uottawa.ca.

In addition to weekly posts, UOAWL will continue our wildly popular “Professor of the Month” posts, which feature professors from the Faculty who support and contribute to feminist legal thought.

Have an excellent fall term, everyone!

Angela Livingstone
2019 JD Candidate

Professor of the Month: Emilie Taman

Each month, we feature a professor from the Faculty who supports and contributes to feminist legal thought.

Emilie Taman.jpg

Emilie Taman
Interviewed by: Kate Cornish

KC: What was your very first job?

ET: As a lawyer?

KC: Any first job!

ET: I worked at summer camp forever and ever and ever. I was one of those people who was still working at summer camp at an embarrassingly old age, well into my undergrad for sure. And as a result of that, it kind of interfered with my ability to have normal summer jobs. But then my first non-camp related job was at the department store “Ogilvy” in Montreal in the papeterie selling high end pens, which was kind of my dream job and still sort of is!

KC: So from selling pens, how did you get on this path to law?

ET: This is actually kind of a funny story. My parents were both in the legal profession, and so from a very young age people would always say to me, “are you going to be a lawyer when you grow up?” And I would say “no!” And as a result, I undertook a very Type A form of rebellion, which was majoring in bio-chemistry in my undergrad as my way of saying “see, I’m not going to be a lawyer.” And when I told my dad that I was going to study bio-chemistry, he said, “that’s so great, we’re so proud of you for doing this science stuff, and when you finally realize that what you actually want to be is a lawyer, we’ll support you.” And I was indignant. And it wasn’t because there was pressure to be a lawyer, it was more like my dad knew me, and just strongly felt that I would end up being a lawyer. Then a year later, in my third year I started thinking I might want to transfer to political science. Long story short, I did end up applying to law school, so that was my path. It was like a reluctant acquiescence to a foretold destiny.

KC: Great! Yeah, I was going to ask about how your parents’ legal careers influenced your upbringing and your pursuit of law.

ET: Number one, it caused me to not want to be a lawyer. But not because I wasn’t interested in what they were doing – my parents both kept their work separate, they didn’t spend a lot of time talking to me about their work per se. But I do think it shaped my capacity for legal reasoning, just the way we talked about issues and things, it was a very logical kind of approach. Also the fact that my parents had very varied careers. My  professional role models through my parents weren’t people who just went to big firms and stayed there for their whole career. And I think that has really informed my own risk taking with my career, and my own comfort with every couple of years fundamentally changing what I’m doing. This is consistent with what I saw and only now understand was quite unusual for their generation.

KC: In your varied career, what are you working on at the moment that you’re most proud of or excited about?

ET: Tricky! I am someone who tends to have a lot of little things on the go. I mean, I’m teaching a new course this semester and it’s the first time I’m having to build a class from the ground up, and it’s in the area of criminal evidence, and evidence was my favourite class so it’s been really fun to go back to first principles. I just spent two days going over document intensive cases with them, and how you deal with this is very complicated because the Evidence Act is often not very clear. And I was thinking, I wish I had done this as a lawyer: gone from the beginning and gone through all the cases, make some slides… it’s very refreshing. I’ve enjoyed teaching and going back to the basics and remembering why I loved law school so much. I’m running for city council so that’s kind of exciting too. And I work with a refugee sponsorship group. We’re about to bring over our 4th family and that’s been a really rewarding experience and a way to engage with members of my community.

KC: You mentioned you have a life in politics as well, so what about being a lawyer have you been able to translate into political life?

ET: In fact, part of what moved me to enter politics was Tom Mulcair and his manner as leader of the opposition in question period and just his style. People often talk about what an able cross-examiner he was in the House. And when I was starting to think about politics and standing up to things the government was doing, then I would see Tom and think, “I kind of have that same skill set.” It was the first time I saw a super natural transition from law to politics. And it’s not brain surgery, so many people in politics come from law. I think where I had a strength as a candidate was being able to think on my feet in debates, and having confidence in my ability to research an issue, form an understanding of it, and then repackage it in a way that’s accessible for someone who doesn’t really understand it. When you’re a litigator, that’s a big part of what you have to do. Like when I did white-collar crime and you might have to explain a complicated scheme to a judge. It’s a skill that civil litigators have too. Condensing and repackaging, but not by dumbing it down. Kind of like what we do on the podcast – trying to make things more accessible. I think that’s a legal skill that’s an asset in politics.

KC: Do you want to tell us a bit about your podcast?

ET: I co-host “The Docket,” with my common law spouse, Michael Spratt, who’s a criminal defense lawyer. He actually started the podcast with a colleague, before I was involved. It was fine, they enjoyed themselves and had some good guests, but it wasn’t circulating as widely. When I came on, it was because we decided to do this thing on “Making a Murderer” and wouldn’t it be cool cause we were a crown and a defense lawyer. My mom was involved from time to time, and she’s a former judge, and we found we had good chemistry for it and had positive feedback. So when “Making a Murderer” ended, we decided we would just continue with it, but dealing with contemporary legal and political issues. We enjoyed doing it, if we had more time we’d do an episode weekly. We don’t spend a ton of time preparing, maybe we follow something in the media or read a decision that we want to refer to. It eats into our very precious leisure time, but it’s fun!

KC: You mentioned “Making of a Murderer,” do you have a favourite Netflix show at the moment?

ET: I am currently watching “This is Us” – I just stumbled on it, I hadn’t heard all the hype about it. I’ve re-watched Grey’s–it’s like comfort food for me. It’s hard because Mike has an aversion to any legal procedural shows, for him it’s too close to work. He couldn’t deal with The Wire, whereas I like shows like that. There’s the shows you watch with your partner and the shows you watch alone. But definitely into “This is Us” at the moment.

KC: Good show! So what is the best thing about being a prof at Ottawa U?

ET: I just really like the combination of being able to teach in a subject matter that I really really love, but also–to the extent students are open to it–I do enjoy the mentorship part of it. So I’ve really invested time and tried to help people move forward in their careers who are interested in criminal law in particular, which is not everyone who takes first year Crim. I’ve really made a commitment to myself that I am always going to find the time for reference letters and introducing people to folks who are practicing. When I look back on my own classmates, and especially now that we’re about 15 years out of law school, I was one of five classmates running in the federal election. Another classmate is the Attorney General of BC. Now I always think about who are my students, who is going to be in those super high profile jobs, and also who is going to make those small impacts in their community as well.

KC: That’s nice. So if you had one piece of advice for students, what would it be?

ET: For students that are interested in Crim, not to dismiss it as a career like I initially did. I would always go to interviews and say “I know my transcript looks like I’m really into Crim but it’s really just an academic interest.” I didn’t really seriously consider it as a career path. But the biggest thing is, I’m big on risk taking and openness to opportunities, so I think my number one advice would be, don’t be too singular in your plan – like don’t have a 2 year plan, a 5 year plan, a 10 year plan, that’s very rigid. I think when you have that, you can miss the opportunities that will take you where you’re meant to go. So I’m not saying don’t be ambitious, be ambitious, and be forward looking, but be prepared to deviate from that plan. Law is a career where you can and should love your work, and if you’re not loving your work then there’s something else for you. A law degree is so versatile, you don’t need to be in a big firm to be a lawyer. Don’t get sucked into the path of least resistance. It’s just harder to get those alternative careers so you have to be willing to put the work in.

Professor of the Month: Rosemary Cairns Way

Each month, we feature a professor from the Faculty who supports and contributes to feminist legal thought.


Rosemary Cairns Way
Full Professor
Interviewed by: Bianca Salive

BS: Tell us where you started – what was your path to law?

RCW: I started out having no real interest in, or awareness of the law; my undergraduate and graduate degrees were in music. After finishing my masters, I realized I wanted something a little bit more practical and decided to go to law school. The fact that I had a music degree wasn’t a barrier for law school. My husband was applying to medical school at Western University so I applied to law school there and that was where we both went. I started law school in 1981 … the Charter had not yet been enacted. It was a fine school, I enjoyed my legal education. The one thing that changed my education was the fact that I was in a committed relationship when I started law school, and I had a baby early in second year. Having a baby made me organize my life differently.

BS: I can imagine. What was your very first job?

RCW: My very first job? I worked at a florist while I was in high school – this is actually an example of nepotism as my mother worked as a florist and she got me the job. I basically answered the phone, and wrapped flowers, and swept the floor – nothing terribly creative. I have a lifelong aversion to Valentine’s Day, Mother’s Day and poinsettias at Christmas. When you work at a florist, Valentine’s Day is the worst day of the year *laughs*.

My first law school job was as a research assistant – I worked with a torts professor whose name is probably still on your Torts textbook – Bob Solomon. I also worked for a professor who was doing work on access to justice issues. Another summer I worked for the Law Reform Commission doing research on police powers – search and seizure and things of that sort. I can’t remember the order of those – maybe you can put down that I am very forgetful.

BS: Did you have any particular interest in Torts law then?

RCW: I didn’t have a passion for any one particular subject in law school. When my daughter was born I really just chose classes based on what would fit in a 9-5 schedule. The range of choices when I was in school was much different than it is now, much more classical, much more blackletter. There was a more formalistic and traditional view of what it meant to be a lawyer.

BS: Yes – thinking of the thematic options we have now, a lot of them wouldn’t have been an issue when you were in school, like cyberfeminism for example.

RCW: No, no one was even really teaching about women and the law. In fact, Professor Backhouse came to Western right around the time I was a student there and I remember that there was a fair amount of backlash to the idea that there was a course that focused on women and the law. The environment at law school was extremely traditional.

BS: I can imagine. You obviously have an interest in the academic side of law now – when did that develop?

RCW: I think like a lot of new law students I didn’t really know what lawyers did. There were no lawyers in my family. My father was a university professor so I had a model of a university professor growing up. Whilst I was in law school, the most transformative event was having a child. There was nothing in the law school environment that made me think that I wanted to go into practice – but I wasn’t close minded about it. The fact that I did well and ended up clerking at the Supreme Court was probably the thing that made me realize I wasn’t cut out for litigation. I am an ivory tower academic *laughs*. I did go to interviews at law firms – we were recruited pretty heavily as clerks – but they couldn’t slot me into their structure because I said I want to work part time and I want to do research. But that’s not what happens in law firms, you have to work 60 hours a week and you can’t just do research.

BS: Clerking at the Supreme Court – that’s very impressive.

RCW: Well what was impressive was that when I was clerking at the Supreme Court, I had three kids under the age of five. I had a very supportive partner – I could not have done it without him. I also had a very supportive judge.

BS: I can only imagine what barriers you must have faced being both a female and a mother in a job like that.

RCW: Well the judge that I worked with, Justice Le Dain, was a father of six children who had daughters similar in age to me at the time. He was completely understanding. He knew that I worked from 9-5 and was completely OK with that.

BS: What was the ratio of males to females serving as Supreme Court law clerks at that time?

RCW: By the time I was in law school the class was about one third women. And the clerks were at least one third women as well. Since most judges hired for two positions, it was typically one man and one woman per judge. I didn’t encounter what I identified as any sexism in the hiring of clerks. I did get asked many times how I was going to handle being a mother and a clerk at the same time. At the time (1985) I didn’t hear that as being a sexist question but now, of course, I would.

BS: Something your husband probably never heard as a doctor.

RCW: No – different times.

BS: What are you working on right now that you’re particularly excited about or proud of?

RCW: One thing I’m involved in right now is a recent private member’s bill, which mandates judicial education on sexual assault for lawyers who wish to apply to the bench. I’ve been involved with judicial education for more than 20 years. There have been some fascinating changes in that time, some really interesting ongoing evolution about the relationship between judicial education and judicial independence. There is much more open mindedness to judicial education now than there used to be. After the Robin Camp Inquiry, and in the wake of the Jian Ghomeshi case, a private member (Rona Ambrose) brought forward a bill mandating education on sexual assault for those applying to the bench – a very obvious response to the public concern over both cases. The legislation is now in front of the Senate, and I have been contributing to discussions over what that education should look like. I find the public story around the legislation very interesting because it suggests that politicians are increasingly prepared to think about who judges are, what they do, and how they do it – and are increasingly prepared to politicize it. I am not sure that is always a good thing. Sometimes it leads to something reactive like this bill, which I think is primarily politically motivated and unlikely to change very much. I think Ms. Ambrose is likely well intentioned, but she is a member of the former government, which took a very regressive approach to judicial appointment. They failed to appoint racialized people or women to the bench in sufficient (or any) number, and now she is pushing a bill, which takes aim at the behaviour of judges, many of whom that government was responsible for appointing. I am writing and thinking about all of this, and at the same time I’m participating in pieces of its possible implementation. One of the benefits of being involved in law for this long is that you have a breadth of perspective. Thinking back to what it was like 30 years ago, I can see a significant evolution in thinking. There is no way a bill like this would have been presented 20 years ago when I began working in judicial education.

BS: Sounds like a really interesting take on the education around sexual assault, it’s a very complicated issue. It’s not a black and white problem.

RCW: No, it’s not. And one of the things that working with judges has given me is a nuanced understanding of how difficult the job that judges have to do is. I am not an apologist for judges who do a terrible job – but it is a really hard job. You may not agree with them, but you have to appreciate the challenges, and I think understanding those challenges makes my teaching in law school and for the judiciary much richer. Even if I don’t agree with a judgement, I start from a place of respect for the judge.

BS: And especially in the context of sexual assault where we have a presumption of innocence for the accused, but we also want to believe the victim, which are almost competing interests.

RCW: Yes and judges live in Canadian society, they read the newspapers, they see the reaction to the Ghomeshi trial and they look at what happened to Justice Camp. And I think most judges are appalled by what he said, but I think they also have very complex questions in front of them. So it’s important for us to give them the tools to make decisions on things they may not know that much about, and also help judges to identify what they may not know, and how significant their lack of knowledge may be to the fairness of a trial. Judges are traditionally the removed, dispassionate observer of the two lawyers duking it out. When judges intervene they tend to worry about the impact their intervention may have on the requirement that they be impartial.

BS: On a less scandalous note, what is the best thing about being a professor at uOttawa?

RCW: The best and most exciting thing over the last 20 years has been the influx of young, interesting, super accomplished colleagues. When I get a chance to spend time with them, I’m always blown away with the work that’s being done. It’s nice to be near the end of my career and be a cheerleader for younger colleagues. It’s really a privilege to be spending time with people who are younger than you and who are doing such important work.

BS: What about your free time – I know that you are an opera singer.

RCW: Yes! I am in a small choir of about 20 and we perform regularly at the Arts Centre. We do a whole range of music at a lot of locations – probably about 6-8 concerts per year. So, a lot of my spare time is doing that. I also have a new grandson and I like to read.

BS: Do you have a favourite book at the moment?

RCW: I just read a book called “The Break” by Katherena Vermette, she is a Metis writer from Manitoba. It’s quite an interesting book for a law student to read – it’s about a sexual assault that occurs within an Indigenous community, and the layers of how the family responds and how they interact with the legal system.

BS: I read about your “dreams of a law school classroom in which Mozart, Verdi and Puccini illuminate and enrich the concepts of equality, professionalism and justice” – tell us more about that.

RCW: I guess I was trying to say that there are connections between music and law. I want to create a classroom that is not dry and technical, but is infused with humanity. For me, music is humanity at its most beautiful. There are a lot of examples of art being used to tell a story that law should pay attention to – access to justice and human rights are examples.

BS: One final question – if you had one piece of advice for law students what would it be?

RCW: Keep alive the part of your life that isn’t connected to the law and see what hanging on to that connection and identity has to say about who you are as a lawyer. I think you’re a better lawyer if you’re engaged by something that moves you which is beyond the law. We often send a message that you have to be consumed by the law in order to be a good lawyer and I don’t think that’s true. I think you’re probably a better lawyer if you have a healthy engagement but also the capacity to be detached from it.












Canada is Failing Indigenous Women

Paula Ethans
JD Candidate, 2018

The scale and severity of the persecution faced by Indigenous women in Canada is a human rights crisis. The impact of residential schools, the “Sixties Scoop,” and the Indian Act, as well as discriminatory child welfare policies continue to subject Indigenous women to cultural dislocation, and family breakdown.[1] But particularly troubling is the level of violence directed at Indigenous women in Canada, and Canada’s poor response to this violence.

Indigenous women are acutely vulnerable to violent crime

Indigenous women are particularly vulnerable to sexual, gender based, and domestic violence. Canada’s homicide rate for Indigenous women is seven times higher than for non-Indigenous women,[2] and while Indigenous women only make up 4.3% of Canada’s female population, they account for at least 11.3% of missing women in the country.[3] A 2009 government survey of Canadian provinces found that Indigenous women are nearly three times more likely than non-Indigenous women to report being a victim of a violent crime.[4]

Violence against Indigenous women is rooted in racism, a notion that is affirmed by many local and international organizations, as well as the poor relationship between Indigenous women and law enforcement.[5] Police procedures for responding to missing persons cases, for instance, often fail to acknowledge the pervasiveness and severity of the threats Indigenous women endure, which leads to slow and ineffective responses.[6] As well, harmful biases, which devalue family concerns, are pervasive in police departments, resulting in these concerns being ignored or producing lackluster investigations. The apathy that police exhibit towards Indigenous communities, and specifically the violence Indigenous women endure, is also linked to the vast over representation of Indigenous women in Canadian prisons. Indigenous women comprise 4% of Canada’s population, but they comprise 36.1% of our nation’s female inmate population (and this number is increasing).[7]

The Missing and Murdered Indigenous Women National Inquiry has failed Indigenous communities

Somewhere between 1,200 and 4,200 Indigenous women in Canada have been murdered or are missing.[8] After many years of lobbying, the Missing and Murdered Indigenous Women (MMIW) National Inquiry was launched in 2016. Given the apathetic investigations on the part of law enforcement, the Inquiry was launched to understand root causes of this epidemic. The Inquiry was meant to be a mechanism for advocates to understand how to address the epidemic, and for loved ones to gain closure. Unfortunately, the Inquiry is widely considered a failure. In May 2017, the government was still organizing conference rooms and catering, and had not yet heard from the families of the missing and murdered women.

That same month, the Native Women’s Association of Canada (NWAC) issued a dismal report card on the Inquiry. On 10 out of the report card’s 15 measures, the Inquiry simply failed. In 3 areas, it received cautions and in 2 areas there was not enough information to make an assessment.[9] NWAC’s unfavourable evaluation followed consistent complaints by advocates and family members that the process is falling far behind its intended pace, and that communication with affected families is wholly insufficient. NWAC declared that the Inquiry is not set up to consider the trauma endured by the victims’ loved ones.[10]

Canada’s attempt to do right by Indigenous women and their communities has failed. Those that the Inquiry is meant to serve feel forgotten and devalued.

Pressure is mounting at home and abroad

There is increasing pressure from Canadians, and the international community, for Canada to take responsibility for its treatment of Indigenous women. The Committee on the Elimination of Racial Discrimination (CERD) expressed its concern that Indigenous women “are disproportionately victims of life threatening forms of violence, spousal homicides and disappearances,” and urged Canada to take action.[11] The Committee on the Elimination of Discrimination Against Women (CEDAW), the Committee Against Torture (CAT), and the Committee on the Rights of the Child (CRC) have also noted the horrific conditions Indigenous women in Canada endure, urging Canada to enhance its efforts to end all forms of violence against Indigenous women.[12]

Where do we go from here?

If Canada is to create meaningful change, it must act. First, Canada must honour its obligations under domestic and international law, and specifically the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).[13] Second, we must lay out a coordinated national response to address existing gaps in policies, programs, and services that work to end violence against Indigenous women. Specifically, the government needs a comprehensive data collection system to record whether the victim is Indigenous, as well as standardized police protocols for missing person cases, and a dramatic improvement in the coordination of investigations for Indigenous missing person and homicide cases. Lastly, we must commit long term funding to ensure the provision of services for Indigenous women at risk of violence.

But mostly importantly, Canada must acknowledge this epidemic and take responsibility. Canada is failing Indigenous women.


[1] For purposes of brevity I will say “women” in this article, but this topic concerns Indigenous women, girls, and two-spirited persons.

[2] Jodi-Anne Brzozowski et al, “Victimization and offending among the Aboriginal population in Canada” (2006) 26(3) Canadian Centre for Justice Statistics at 7.

[3] Royal Canadian Mounted Police, “Missing and Murdered Aboriginal Women: A National Operational Overview” (2014) at 8, online: <http://www.rcmp-grc.gc.ca/wam/media/460/original/0cbd8968a049aa0b44d343e76b4a9478.pdf&gt;.

[4] Shannon Brennan, “Violent Victimization of Aboriginal Women in the Canadian Provinces” (2011) Statistics Canada, online: <statcan.gc.ca>. This figure is not complete, as it excludes violence against women in Yukon, Northwest Territories, and Nunavut, where most Inuit women live.

[5] The UN and Inter-American Commission on Human Rights uphold that racism and classism are the underlying causes of the murders and disappearances of Indigenous women, See: Human Rights Watch, “Submission to the Government of Canada on Police Abuse of Indigenous Women in Saskatchewan and Failures to Protect Indigenous Women from Violence” (19 June 2017), online: <https://www.hrw.org&gt;.

[6] Amnesty International, “Stolen Sisters: A Human Rights Response to Discrimination and Violence against Indigenous Women in Canada” (October 2004) at 2, online: <https://www.amnesty.ca/sites/amnesty/files/amr200032004enstolensisters.pdf&gt;.

[7] Vivian O’Donnell and Susan Wallace, “First Nations, Inuit and Métis Women” (30 November 2015) Statistics Canada, online: <statcan.gc.ca>; Public Safety Canada, “2016 Corrections and Conditional Release Statistical Overview” (April 2017), online: <https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ccrso-2016/ccrso-2016-en.pdf&gt;.

[8] The RCMP reported 1,200 in 2104, but in 2016, ‘Walk 4 Justice’ collected names from families and communities and stopped counting at 4,232.

[9] Native Women’s Association of Canada, “NWAC REPORT CARD (second)” (January 2017 – April 2017), online: <https://www.nwac.ca/wp-content/uploads/2017/05/NWAC-Inquiry-Report-Card-May-2017-Final.pdf&gt;.

[10] Ibid at 6.

[11] Concluding Observations of the Committee on the Elimination of Racial Discrimination: Canada, CERD, 80th Sess, CERD/C/CAN/CO/19-20 (2012) at para 17.

[12] Concluding Observations of the Committee Against Torture: Canada, CAT, 48th Sess, CAT/C/CAN/CO/6 (2012) at para 20; Concluding Observations of the Committee on the Rights of the Child: Canada, CRC, 61st Sess, CRC/C/CAN/CO/3-4 (2012) at paras 47–48, online: <http://www2.ohchr.org/english/bodies/crc/docs/co/CRC-C-CAN-CO-3-4_en.pdf&gt;; Concluding Observations of the Committee on the Elimination of Discrimination against Women: Canada, CEDAW, 42nd Sess, CEDAW/C/CAN/CO/7 (2008) at para 44.

[13] United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (13 September 2007).



The Second Voice of “The Sisterhood”

Angela Livingstone
JD Candidate, 2019

“If a unitary “women’s experience” or “feminism” must be distilled, feminists must ignore many women’s voices…In feminist legal theory, the pull of the second voice, the voice of abstract categorization, is still powerfully strong.”

– Angela Harris, 1990[1]

Feminists continue to face external and internal criticism. To those outside, we are subversive man-haters, insatiable, hardline extremists.[2] More concerning, however, are the criticisms from the women within, women who have become disillusioned with the potential of feminism to go beyond establishing formal equality for “the sisterhood.” Here, feminists are criticized for a myopic focus on gender as the primary source of oppression, leaving them unresponsive to other relations of power.

Feminist legal theory is not immune to these criticisms. Feminist legal scholars and practitioners are frequently accused of simply adding the category of “women” into the existing legal framework, effectively replacing the voice of the objective, rational man with that of an objective, rational (white, straight, middle class) woman who claims to speak for all.[3] The experiences of women who do not fit this normative framework are ignored, the women themselves betrayed, and ultimately unmoved by the pleas of feminist legal theorists to join the cause.[4]

Yet feminist legal theory has transformative potential. Feminist legal scholars work to destabilize presumed impartiality in applying the law, drawing attention to the barriers women continue to face.[5] And as legal professionals, feminists are best positioned to shift the culture of legal practice, and to address systemic discrimination and poor representation both within the profession, and with respect to the society the profession serves.[6]

In a very real sense, then, the quotation by Angela Harris is confounding. Three key questions emerge. First, why are feminist legal theorists drawn to what Harris refers to as the second voice? Second, whose voices are ignored when the second voice speaks loudly, and why does this matter? And third, is it necessary to distill a unitary “women’s experience,” or can we accommodate difference while moving forward as distinctly feminist legal theorists and practitioners?

Why are some feminist legal theorists drawn to the second voice?

 The second voice is the abstract voice of objectivity that animates our allegedly impartial legal system.[7] Feminists have challenged the ability of this voice to speak for women, but rather than unpacking assumptions about objectivity in the law, this challenge has often amounted to simply replacing the objective male voice with an objective female.[8] The power of this voice comes from the compelling arguments that it can advance, arguments that demand better representation or equal rights for women. While rhetorically useful, these arguments generally result in formal, rather than substantive equality gains because they are practically divorced from real women’s lives. The female second voice is also intimately tied to gender essentialism, the idea that there is a universal women’s experience with oppression, and that this experience can be understood independently of other social relations of power.[9] Arguably, not all gender essentialism inevitably requires the permanent transcending of difference; however, unquestioned, self-protecting gender essentialism is highly problematic.[10] Without being open about the categories we are strategically employing, without critically examining all relationships of power, and the points at which they intersect, it is easy to frame white, middle class women’s experience as objective truth, and thus to speak with the second voice.

Who is ignored by the second voice, and why does this matter?

Relying on the second voice ignores the lived realities of the vast majority of women, severely limiting the transformative potential of feminist legal theory. Insisting on an objective knowledge based on a shared experience of gendered oppression, “perpetuates the visibility of only certain women” in the legal framework, silencing those who do not fit the norm.[11] For example, in discussions concerning systemic violence against women, the stories of non-white, poor, or transgender women are often not heard, even though these women are more likely to experience gendered violence.[12] Similarly, mainstream conversations about rape culture say little about the unique effect of rape culture on the lives of Indigenous women.[13] As well, focusing on gender as distinct from other relationships perpetuates a legal fiction tied to the idea that it is possible to compartmentalize the multiple oppressions women are experiencing. Yet women do not experience their categories of identity separately.[14] Indeed, there is a compounding effect to these multiple intersecting oppressions, which can further marginalize women.[15] Finally, relying on an objective women’s voice precludes the possibility of substantively changing the current legal system. It is impossible, for instance, to appropriately address bias in legal processes and legal decision-making without understanding the multiple intersecting relations of power and privilege that impact all actors within the justice system.[16]

Do we need a unified women’s experience, or can we proceed with difference?

In order to realize the transformative potential of feminist legal theory, I suggest we move away from the voice of the objective universal woman, and instead look to an intersectional ethic based on a principle of relationality. At first glance, it may be difficult to see how feminist legal theory can recognize difference, and yet remain committed to making the legal system more responsive to the needs of women. Indeed, one criticism of intersectionality is that in emphasizing difference, it dilutes the feminist movement.[17] However, when we start to imagine the differences as enriching, rather then impeding our efforts, we turn these differences into strengths.[18] An intersectional ethic, supported by a relational ontology, identifies the different relationships of power and privilege in women’s lives. This ethical perspective then asks feminist legal theorists to consider the nature of these connections, their impact, and how we can use our knowledge of these connections to promote relationships marked by respect and dignity.[19] For example, acknowledging the different relationships that shape and impact women helps to reveal assumptions made in legal decision-making, and subsequently helps feminists to destabilize the idea of the law as impartial. Overall, a better understanding of these intersecting relationships of power and privilege helps feminists to build a better justice system, one that is genuinely relevant to the lives of the women it purports to serve.[20]

[1] Angela P Harris, “Race and Essentialism in Legal Theory,” Stanford Law Review, 42: 581 at 587.

[2] CBC, “The F Word: Who Wants to be a Feminist?” CBC Doc Zone, original airdate: March 2, 2011.

[3] Supra note 1at 588; see also Trina Grillo, “Anti-Essentialism and Intersectionality: Tools to Dismantle the Master’s House” (1995) 10 Berkeley Women’s LJ 16-30.

[4]Tracey Lindberg, “Not My Sister: What Feminists Can Learn about Sisterhood from Indigenous Women” (2004) 16 CJWL at 345.

[5] Susan B Boyd, “Spaces and Challenges: Feminism in Legal Academia,” in National Association of Women and the Law (NAWL), The Gender and the Law Manual: An Introductory Handbook for Law Students (Ottawa: The National Association of Women and the Law Charitable Trust for Research and Education, 2011).

[6] Rosemary Cairns Way, “Reconceptualizing Professional Responsibility: Incorporating Equality,” National Association of Women and the Law (NAWL), The Gender and the Law Manual: An Introductory Handbook for Law Students (Ottawa: The National Association of Women and the Law Charitable Trust for Research and Education, 2011).

[7] Nagire Naffine, “Blind Justice” in T. Brettel Dawson, ed, Women, Law and Social

Change, 5th ed (Concord: Captus Press, 2009) 57-65.

[8] Supra note 1 at 588.

[9] Trina Grillo, “Anti-Essentialism and Intersectionality: Tools to Dismantle the Master’s House” (1995) 10 Berkeley Women’s LJ at 19.

[10] Ibid at 21.

[11] T. Brettel Dawson, “Feminist Legal Studies: A Primer” in T. Brettel Dawson, ed, Women, Law and Social Change, 5th ed (Concord: Captus Press, 2009) at 89.

[12] Jarune Uwujaren & Jamie Utt, “Why Our Feminism Must be Intersectional (and 3 Ways to Practice It)” everyday feminism (11 January 2015) online: http://everydayfeminism.com/2015/01/why-our-feminism-must-be-intersectional/.

[13] Sherene H Razack, “Gendered Racial Violence and Spatialized Justice: The Murder of Pamela George” (2000) 15 Can J L & Soc 91-130.

[14] Patricia Monture, “Standing Against Canadian Law: Naming Omissions of Race, Culture, and Gender” in Elizabeth Comack, ed., Locating Law: Race/Class/Gender/Sexuality Connections (Halifax: Fernwood Publishing, 2006) 73-93.

[15] Kimberlé Crenshaw, “The Urgency of Intersectionality,” TED talk, online: <https://www.youtube.com&gt;.

[16] Lorne Sossin, “Should Canada have a Representative Supreme Court” (Institute of Intergovernmental Relations, School of Policy Studies, Working Paper, 2009) at 4.

[17] Supra note 12.

[18] Supra note 10 at 28; see also Audre Lorde, “The Master’s Tools Will Never Dismantle the Master’s House” in Audre Lorde, Sister Outsider (Berkeley: Ten Speed Press, 1984) at 111.

[19] Jennifer J. Llewellyn, “Restorative Justice: Thinking Relationally About Justice,” National Association of Women and the Law (NAWL), The Gender and the Law Manual: An Introductory Handbook for Law Students (Ottawa: The National Association of Women and the Law Charitable Trust for Research and Education, 2011).

[20] Ibid.