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: <;.

[4] Shannon Brennan, “Violent Victimization of Aboriginal Women in the Canadian Provinces” (2011) Statistics Canada, online: <>. 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: <;.

[6] Amnesty International, “Stolen Sisters: A Human Rights Response to Discrimination and Violence against Indigenous Women in Canada” (October 2004) at 2, online: <;.

[7] Vivian O’Donnell and Susan Wallace, “First Nations, Inuit and Métis Women” (30 November 2015) Statistics Canada, online: <>; Public Safety Canada, “2016 Corrections and Conditional Release Statistical Overview” (April 2017), online: <;.

[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: <;.

[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: <;; 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:

[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: <;.

[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.

The Dead Hand of Coverture: Property, Gender, and Autonomy in Modern Society

Vanessa Carment
JD Candidate, 2019

Coverture is an historical common law doctrine restricting female property rights.[1] Though coverture laws were repealed in the 20th century, their patriarchal and oppressive influence persists. Coverture is entrenched in two arguments that belittle female autonomy. The first is that female biology makes women “unfit for tasks of public importance,” including decision-making regarding the treatment of their own bodies.[2] The second argument is that women are unfit for positions of power because they are morally pure and delicate.[3] These arguments remain the ideological basis of modern property-based feminist issues, including abortion rights and married women taking their husband’s name.

Historically, coverture changed a woman’s legal status after marriage so the husband and wife became one legal person.[4] Essentially, the wife came under the ‘cover’ of her husband.[5] Coverture had a particularly negative effect on women’s property rights. Property ownership and autonomy are deeply connected, and coverture was borne out of a patriarchal system that controlled and oppressed women by regulating property.[6]

Regulation of women’s bodies is at the core of the abortion debate, which turns on whether a woman is capable of deciding what should happen to her body while she is pregnant. While pro-choice advocates argue that women should retain autonomy over their physical health, anti-choice arguments are deeply rooted in coverture ideology, suggesting that “womanhood [is] a lesser state that lacks the ability to reason and make competent decisions.”[7] Coverture stripped women of their legal autonomy by taking away their property rights; anti-choice advocates take away women’s rights to control their bodies by relying on out-dated falsehoods about women’s capacity to make decisions.

In addition, coverture forms the ideological basis of surname change in marriage. Previously, coverture merged the husband and wife into one, stripping the woman of her individual property rights. Taking the husband’s name symbolized the merger.[8] Even though legally binding coverture has been repealed, this element of the institution of marriage remains for many couples. Lou Heinrich describes how taking one’s husband’s name is a “patriarchal, male-centric tradition whose history is rooted in possession and control.”[9] The underlying purpose of changing one’s name and its continued prevalence makes it a modern feminist issue, which demonstrates the lasting effect of coverture in Western society.

The continued impact of coverture is a feminist issue that cannot be overlooked simply because the black letter laws were repealed. Being aware of legal history is essential to understanding modern feminist legal issues. Property, gender, and autonomy are deeply interconnected and influenced by history. Now more than ever, society must be critical of how the dead hand of coverture continues to restrict female autonomy in modern society.

[1] Due to the space constraints of this blog post, I will only be addressing these issues in the context of heterosexual relationships. However, the effect of coverture reaches into the LGBTQ context and deserves academic exploration.

[2] Joan Hoff, “American Women and the Lingering Implications of Coverture” (2007) 44 Social Science J 41 at 44.

[3] Ibid.

[4] Karen Pearlston, Law of Coverture (Faculty of Law, University of New Brunswick, October 26, 2016).

[5] Ibid.

[6] Lou Heinrich, “Name Calling: Coverture in a Feminist Age” (2015) 20 Kill Your Darlings 81 at 84. [Henrich]

[7] Maggie Cheu, “Now and Then: How Coverture Ideology Informs the Rhetoric of Abortion” (2012) 22 Tex J Women & L 114 at 114.

[8] Heinrich, supra note 2 at 84.

[9] Ibid at 83.

Professor of the Month: Jane Bailey

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

Bailey Photo 3

Jane Bailey
Full Professor
Interviewed by: Ida Mahmoudi

IM: What was your first job ever?

JB: My first job ever?! My first job ever…my parents loved to renovate houses and they employed me in the summer to paint.

IM: Amazing! And what was your favourite thing about that job?

JB: That it was creative!

IM:  You’ve obviously come a long way. How exactly did you become a professor? We know you were a litigator for 6 years and then pursued an LLM. How did you know that being a professor was the right “fit” for you?

JB: When I went to law school, I always thought I’d be a law professor. Some students I felt were not as kind as they could be to professors who never practiced, so I would defend against that by practicing for 3 years. I went into practice and was a litigator at Torys. I stayed there for over 6 years because I really loved it, beyond what I expected. Then things started to change in my life and I met up with a friend who reminded me, “Hey, what ever happened to your 3-year plan?” I thought, “Yeah! What ever DID happen?”

At the time, I was working on an Internet hate speech case. A lot of issues around hate on the Internet, and regulation of speech online had arisen, and they weren’t necessarily the kind of issues that were relevant to the litigation, or that had to be dealt with in the litigation. I then realized I had a project for graduate school. I did my Masters at the University of Toronto, focusing on the regulation of Internet hate speech, and came for an interview here at uOttawa. I met Ian Kerr and the rest is history once you meet Ian Kerr…so here I am! One of my friends from practice told me that she was glad to see me “returning to the mothership.” So yeah! I feel like I belong here, but I really value what happened in my practice and some of my best friends are still my friends from practice.

IM: What has been the biggest challenge when conducting your research about women’s rights online? What’s really struck you about this field?

JB: I think what strikes me most about anything dealing with women’s rights is the abject frustration I feel about the constant repetition of the same kinds of attacks on women, attacks on their sexuality, attacks on their autonomy, no matter the medium, no matter the era. All of these restrictions, and how they can self-represent, and what they’re allowed to do and what they are not allowed to do, and so to see patterns repeating time and again historically is a serious challenge. I also worry that there has been a lot of ink spilled as between feminists and we haven’t necessarily capitalized on all of the work that’s been done historically. So those would be the challenges I think.

IM: Absolutely. On a happier note, what is the best thing about being a professor at uOttawa?

JB: There are so many good things about being a professor here. I mean I’m so proud of what a social justice profile we’ve built in this Faculty. My colleagues are absolutely unbelievable people, brilliant people doing such a wide variety of amazing things, and of course we, I think in part thanks to this reputation we’ve built, attract these amazing social justice oriented students, which gives you a really positive feeling about the future of the legal profession.

IM: And…what about your free time?!

JB: Free time! So in my free time, I’m a freelance taxi driver for my two daughters, and you know what?  I don’t even mind that. They’re teenagers, so their lives are starting to take off in terms of independence, so facilitating that is a pure joy of mine. Other than that, I like to cook and I LOVE watching food TV…and doing yoga of course! Hot yoga.

IM: Last but not least, if you had one piece of advice for incoming or current law students what would it be?

JB: Don’t let go of who you are. Bring who you are and everything you know to the study and practice of law. Even when you feel like sometimes it’s not relevant, be assured that it is. It’s this rich diversity of perspectives that I think is the key to making social justice change.










The Complications of Consent in Pre-Existing Relationships

Laura Thistle
JD Candidate, 2020    

Sexual assault cases cause controversy and tension for the Canadian justice system. The common argument is that the system does not provide justice for victims of sexual assault. The real challenge lies in understanding the circumstances surrounding the crime of sexual assault – namely, how often the crime is committed by an individual known to the victim, and the psychological implications this has for those involved.

Earlier this year I had the chance to speak with Professor Woolley of the University of Calgary, author of the recent ABlawg article “Defending Rapists.”[1] Woolley pointed out that in sexual assault cases, there is often no dispute about whether or not sex occurred – it is a question of consent. That the circumstances surrounding the act are in question means testimony of the parties involved is carefully scrutinized.

Stemming from this scrutiny, there is often vehement disagreement from the public over what the verdict of particular sexual assault cases should be, and whether or not victims are treated fairly. Canada’s sexual assault legislation was overhauled in 1982 to account for historical injustices, but problems persist. Last fall, for instance, it came to light that Alberta Justice Robin Camp presided over a 2014 sexual assault trial and drew on numerous disrespectful assumptions and questions while addressing the victim.[2] Clearly, although steps have been taken to treat victims of sexual assault more fairly, significant tension still exists.

Some of this this tension can be directly linked to the high frequency with which someone the victim knows commits the sexual assault. According to Statistics Canada, 87% of police reported sexual assaults are committed by someone known to the victim.[3] It is therefore unsurprising that less than 10% of sexual assaults are reported to the police – strikingly fewer than other violent offences such as robbery (47%) and physical assault (40%).[4],[5]

When someone known to the victim commits the sexual assault, the victim faces the personal conflict of whether to report the crime at all. Relationships are jeopardized, and families may be torn apart. Furthermore, when bringing a case forward, the presence of a pre-existing relationship between the perpetrator and the victim can cause authorities involved to question the lack of consent. The testimony can become clouded by the presence of a prior relationship with the accused perpetrator – particularly if that prior relationship was a romantic one.

If someone expresses consent once, it is not automatically granted at every future juncture. Similarly, just because trust exists between two people, that does not imply sexual consent. Chief Justice McLachlin set forth the proper understanding of consent in her R. v. J.A. 2011 SCC 28 ruling. She stated, “The legislation requires ongoing, conscious consent […] to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point.”[6] However, later judgments have failed to take this principle into account. For example, in R. v. H.E. 2017 ONSC 4277, Justice Robert Smith dismissed the accused’s sexual assault charges. This acquittal was despite accepting that the accused had sex with his wife on many occasions without her consent.[7] He pointed to the fact that he believed he had a right to do so as reason to doubt his mens rea.[8]

Why was ignorance of the law an acceptable defence in this instance, when we know from R v. Jorgensen that ignorance in the law is no defence?[9] I argue that it is due to deep assumptions about consent stemming from pre-existing relationships, and that somehow trust implies ongoing consent. I would further suggest that these erroneous assumptions are often unconscious; few would say they truly believe that the existence of a past relationship implies future consent. Nevertheless, it appears that it is easier to believe that a stranger would disrespect a person’s agency in such an intensely invasive way than to believe that a friend – or worse, a partner – would do the same.

In order for this misconception to be properly addressed within the justice system, everyone needs to have a clear understanding of the difference between pre-existing trust and situational consent. Judges and juries need to be aware of the fact that the existence of a trusting relationship does not preclude the possibility of a lack of situational consent. Similarly, police officers responding to sexual assault allegations must refrain from assuming that cases are unfounded because of pre-existing relationships. Sensitivity training already exists for front-line officers who respond to these sorts of cases, but a better understanding of the psychological implications of a pre-existing relationship between victim and assaulter is vital in order for this training to be effective.


[1] Alice Wooley, “Defending Rapists” (30 December 2016) ABlawg (blog), online: <;.

[2] Sean Fine, “The Robin Camp transcript: ‘…keep your knees together’ and other key passages” (9 September 2016) The Globe and Mail, online: <>.

[3] Cristine Rotenberg, “Police-reported sexual assaults in Canada, 2009-2014: A Statistical Profile” (3 October 2017) Statistics Canada, online: <>.

[4] Craig Desson, “What Happens When Someone is Sexually Assaulted? Statistics Canada Says Few Convictions” (5 December 2014) The Toronto Star, online: <>.

[5] Statistics Canada, “Trends in Sexual Offences” (12 February 2013) Canadian Centre for Justice Statistics Profile Series, online: <>.

[6] R v JA, 2011 SCC 28 at 3, [2011] 2 SCR 440.

[7] R v HE, 2017 ONSC 4277 at 16.

[8] Ibid at 16.

[9] R v Jorgensen [1995] 4 SCR 55 at 16, 129 DLR (4th) 510.

Issues Surrounding Surrogacy: A Call for Repairs in the Legal Environment

Maja Petrovic
JD Candidate, 2019

The November 2016 Shirley Greenberg lecture, Reproductive Labour: Reflections on the Law and Policy of Surrogacy, addressed a major issue in property law, namely surrogacy and proprietary interests within the body. The lecture highlighted two key concerns in relation to surrogacy: bodily exploitation and commodification. The speakers of the panel, Professor Bronwyn Parry, Erin Lepine, and Pam MacEachern touched on a number of key points for consideration.

The Assisted Human Reproduction Act (AHRA)[1] is the main piece of legislation on this topic; however, its enforcement has been minimal. In particular, sections 6 and 12, which speak to the practice of surrogacy, are poorly enforced and are currently under revision. I suggest that this uncertain legal environment has contributed to the problems of bodily exploitation and commodification in surrogacy practices. A sound legislative scheme, with proper enforcement and regulation mechanisms, is crucial to addressing these concerns.

Exploitation of Women

In the lecture, Erin Lepine and Pam MacEachern explained how exploitation is inherent in commercial surrogacy, particularly through the use of surrogacy agreements. These agreements are extremely restrictive, with potential constrictions on a woman’s diet, exercise, and general lifestyle choices. Surrogate mothers are at risk of severe penalization if there is a breach of contract. Additionally, surrogate mothers often receive minimal compensation, while fertility clinics accumulate significant wealth.

However, Professor Parry argued that “selling access to one’s reproductive capacities” through surrogacy is not “inherently exploitive,” and should not be illegal. Parry’s arguments mirror those of Richard Arneson, who in his article “Commodification and Commercial Surrogacy,” argues that the case against commercial surrogacy is not strong enough to show that it is “socially harmful.”[2] Arneson concludes that a complete ban of commercial surrogacy is unwarranted.[3] Parry admitted, however, that the lack of legal enforcement, and the absence of regulations have given rise to undue exploitation.

Commodification of the Body

Parry also argued that surrogacy is not entirely distinct from other forms of “clinical labour” that are deemed acceptable in society.  She analogized surrogacy with modern-day purchasing of services, such as nursing, or day care, which essentially commodify “affective care.”

However when it comes to surrogacy, the specific concern is with the potential for commodifying the body. Lepine and MacEachern suggested that surrogacy is founded on the notion of framing the body as an object, and reproduction as a skill that can be paid for. Similarly, David Snow argues that surrogacy frames women as “objects of use” and treats babies as “objects to be purchased and sold.”[4] Genevieve Plaster points to arguments made by “Stop Surrogacy Now” (SSN) that surrogacy frames children as “objects of contract,” making commercial surrogacy “indistinguishable from the buying and selling of children.”[5] Commodification of the body is particularly problematic because it infringes on our existing social and moral values, which uphold the dignity and sanctity of the human body, as suggested by Mosk J in Moore v Regents of University of California.[6]

A broader issue echoes in this discussion: should our bodies be considered legal property? In Our Bodies, Whose Property? Anne Phillips suggests that associating the body with property essentially diminishes our bodies’ moral significance to our persona, and allows us to think of our bodies as marketable resources.[7]

Perhaps the real challenge is answering the following: how can the law allow for surrogacy without implicitly allowing for the commodification of women’s bodies, and framing the human body as “property?” It seems that whether surrogacy is altruistic or commercial, the ultimate result is commodification. However, to add some food for thought: if someone is engaging in a practice for all of the “right” reasons (i.e. altruistic surrogacy or organ donation), does that make commodification of the body in those circumstances less problematic? Is there room in the law to allow for practices that inherently frame our bodies as commodities in cases where it is socially, morally, and ethically acceptable?

Parliament and Health Canada ought to work together to establish an effective piece of legislation that addresses the discussed concerns, given the evident flaws within the existing legal environment. Perhaps the best results will come from considering the interests of those who appreciate the benefits of surrogacy, while limiting opportunities for the practice to cross society’s moral boundaries.

[1] Assisted Human Reproduction Act, SC 2004, c 2.

[2] Richard J Arneson, “Commodification and Commercial Surrogacy” (1992) 21(2) Philosophy & Public Affairs 132 at 164.

[3] Ibid.

[4] David Snow, “Criminalising Commercial Surrogacy in Canada and Australia: the political construction of ‘national consensus’” (2016) 51(1) Australian J Political Science 1 at 3.

[5] Genevieve Plaster, “Surrogacy: The Commodification of Motherhood and Human Life” (1 June 2015) Charlotte Lozier Institute, online: <>.

[6] Moore v Regents of University of California, 51 Cal (3d) 120 at 167 (1990).

[7] Anne Phillips, Our Bodies, Whose Property? (Princeton: Princeton University Press, 2013).