Contours Journal Vol X

contours volum e X McGill University Faculty of Law

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This publication was made possible by funding from the McGill Law Students’ Association | L’association des étudiant·e·s en droit de McGill.

Tous les droits sont réservés.

No part of this publication may be reproduced in whole or in part without permission from the authors.

Un grand merci à tou·te·s les auteur·rice·s et éditeur·rice·s ISSN 2292-9630

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CONTOU R S T EAM • E di toria l Te am •

Garima Karia

Vino Wijeyasuriyar

Inès Bagaoui-Fradette

Aliya Behar

Maïmouna Diallo

Georgia Therriault

Léa Brousseau-Bellavance

Olivia Anstess

Managing Editor, 3L

Head Bilingual Editor, 2L

Junior Bilingual Editor, 2L

Junior French Editor, 1L

Head English Editor, 3L

Senior English Editor, 2L

Senior English Editor, 3L

Junior English Editor, 1L

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2021-2022 • M a nag e ria l Tea m •

Meghan Albert

Dominique Grégoire

Hannah Lazare

Emily Michelin

Amina Djouaher

Brianna Ardis-Bernhardt

Head Manager, 3L

Head Manager, 3L

Senior Manager & Treasurer, 4L

Senior Manager, 3L

Junior Manager, 2L

Junior Manager, 2L

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Content s 01

SURVIVING L AW SCHOOL Anonymous

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L AUNCHING THE #BL ACKATMCGILL CAMPAIGN: CHALLENGING MCGILL L AW ’S 200-YEAR-OLD RACIAL CONTRACT Fanta Ly

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SO? Dana-Kaye Matthews

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ON M’A DIT DE NE PAS PARLER Isabelle Côté

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L A DIFFAMATION EN DROIT CIVIL E T LES DÉNONCIATIONS DE VIOLENCE SE XUELLES Shi Tao Zhang

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FOOTNOTES AS A WOMAN IN L AW Meghan Albert

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A GIRL’S GUIDE TO MARRIAGE Shi Tao Zhang

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TO BE INTERFAITH IN L AW: RELIGION, FAITH, COMMUNIT Y, AND SOLIDARIT Y IN L AW SCHOOL Laura Fernz, Andrea Sim & Sara Sanabria (The McGill Christian Legal Fellowship), Meghan Albert (The Jewish Law Students’ Association), Khadija Ahmed (The Muslim Law Students’ Association)

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FEMINISM AND SURROGACY: A COMPLICATED STORY Sofia Watt Sjöstrom

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THE CHARTER IN CHILDCARE : HOW FAR DOES SUBSTANTIVE EQUALIT Y GO IN EARLY CHILDHOOD EDUCATION AND CHILDCARE? Victoria Flaherty

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Looking back, Looking forward FOREWORD

BY GARIMA KARIA MANAGING EDITOR, CONTOURS VOLUME X Ten years ago, Charlotte-Anne Malischewski and Erin Moores put together the first-ever volume of Contours. In the introduction to the volume, they share the story of two side-by-side photos in the atrium. The photo on the left, they explain, is of a group of men standing on the stairs of Old Chancellor Day Hall in 1904. The photo on the right, taken in 2009, is of a group of women, imitating – defiantly – the men in the image from one hundred and five years ago.

As I reflect on the founding editors’ juxtaposition of the images, I contemplate what a potential third image, from 2022, would look like. I’ll admit I’ve never seen the two images, but I would like to imagine that our “2022 version” would accurately reflect how our student body has changed, in many ways, since 2009 (and certainly since 1904!). It’s likely that, instead of fake moustaches, we’d all be donning surgical masks – a sartorial mainstay for most of us during our years of pandemic pedagogy. We’d probably be holding up banners or indicia demonstrating our solidarity with movements that marked our law school years: protest posters in support of Black Lives Matter. Orange shirts from the National Day of Truth and Reconciliation. Pins indicating our opposition to Bill 21. And while I can’t speak to the diversity in the 2009 picture, I am inclined to say that 2022’s would reflect the diversity that Contours strives to spotlight and celebrate. As I stage this photo in my mind, I am cognizant that what I am conjuring up is idealistic, and of course emblematic of a certain story I am choosing to tell. The truth is that, as a faculty, profession, and society, we still have a long way to go when it comes to progressing towards and achieving a reality in which every future lawyer, each with their diverse identity and experiences, feels seen and empowered in the legal world. As I look back on how far we’ve come since 1904, I’m grateful to those who ensured that space would be made for people from all walks of life to join the world of legislation, jurisprudence, and everything in between. As I look forward, I reflect on how much work there is left to do to fully realize the vision of an inclusive and sustainable legal profession in which everyone is truly welcome. And as I look around me, at my peers and community at the Faculty of Law, I feel a deep sense of gratitude for two things: first, to be surrounded by people who, in so many different ways, are doing that hard work; and second, to be amidst such a wide range of perspectives, lived experiences, and convictions.

This 2022 portrait, while demonstrative of the pursuit of social justice and mobilizing for change, also reminds me of the all-too-familiar sense that, sometimes, it feels like so much is happening in Canada and around the world that, on our own, we have difficulty conceiving of how we can help or what we can do as just one person. Whether we are overwhelmed, or burnt out, or confused, or some combination of the three, attempting to face big issues and systemic problems by ourselves can be all-consuming and discouraging. On this preoccupation, Alexandria Ocasio-Cortez has said that we live in a culture of grand gestures and big ambitions, which also means we should be “wary of how much ‘get-rich-quick’ thinking can perpetuate beyond money schemes and into the idea that any [or] all major, impactful shifts happen suddenly and in dramatic fashion with a handful of major figures.”1 That overwhelming feeling, although entirely valid, is far from true. Instead, Ocasio-Cortez compares revolutionary and 1 Alexandria Ocasio-Cortez, “Mosaics” (12 March 2022), online: Alexandria Ocasio-Cortez for Congress < https://talesfromthecollection.com/2022/03/15/aoc/#Mosaics> (this quote and ideas related to it are taken from AOC’s email newsletter).

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transformative change to a mosaic, where each of us is a tile. Like the tiles of a mosaic, our small acts – of solidarity, of humility, of vulnerability, of love – are more integral than we think and more meaningful than we sometimes realize. I like to think that the stories and thoughts of our contributors, and the work of our Contours team, each represent a tile in the mosaic of social change within the legal profession. Over the last decade, the pieces we have showcased are gestures of thoughtfulness and resilience, each representing one person’s journey grappling with the (legal) world around us, and how we can go about changing it, specifically from the perspective of intersectional feminist voices from across the gender spectrum.

Cette année ne fait pas exception. Notre volume présente une diversité de pièces écrites, allant de la poésie au commentaire académique. Certain•es de nos contributeur•rices se penchent sur les réalités vécues par les survivant•es – du racisme, de la misogynie, de l’abus et de la déshumanisation – avec courage et grâce. D’autres présentent des arguments novateurs sur la maternité de substitution, la garde d’enfants, et les possibilités de responsabilisation des survivant•es de violences sexuelles – des questions qui touchent de manière disproportionnée les femmes et les personnes non-binaires, et plus encore celles qui ont des identités intersectionnelles. D’autres encore nous montrent comment trois pièces de mosaïque « séparées » peuvent se réunir en trouvant une communauté l’une dans l’autre grâce à la solidarité entre les religions. L’importance des petits gestes résonne particulièrement cette année, puisque notre volume est le plus court à jour. Pourtant, il est riche et complet, et nous espérons que son contenu rappellera aux lecteur•rices que leurs actes – qu’ils soient petits, moyens ou grands – ont un sens tant qu’ils sont menés avec respect et réflexion.

The publication of this volume would not have been possible without the labour of the team behind it. To the editors – Maïmouna, Léa, Olivia, Georgia, Aliya, Inès, and Vino, your keen eyes and kind hearts did not go unnoticed. To the management team – Brianna, Emily, Dominique, Amina, Hannah and Meghan – your creativity and diligence sustain this publication and the space it creates. You all approached your responsibilities with care, and your interactions with our contributors and one another were imbued with warmth and openness. These qualities are what make this publication so welcoming and so special. And to the heads of this year’s volume – Vino, Inès, Amina, Hannah, and Meghan – thank you for being organized, fearless, and exemplary leaders, and, more importantly, for being such wonderful people to work with. Your commitment to this project and everything it stands for shone through in all of your efforts over the last three years. A very special thank you also goes out to Art, our designer, whose imagination and skill brought this publication to life.

Dans l’esprit d’un regard rétrospectif sur la décennie qui s’est écoulée depuis la naissance de Contours, et d’un regard prospectif sur la façon dont le journal va se développer et changer au cours de la prochaine décennie, je vous invite à vous joindre à moi pour lire ce dixième volume de Contours et à réfléchir à la façon dont chaque article raconte une histoire sur le passé et l’avenir. Sur ce que nous avons vécu, ce à quoi nous avons survécu, et les conversations que nous devons avoir pour aller de l’avant.

Enjoy. Reflect. Discuss.

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Surviving Law School TRIGGER WARNING: Abuse

Dedicated to all those who are navigating the effects of trauma while in law school.

I see you, and I am with you.

‘Criminal Justice’ is an unfortunate misnomer. Those of us who have experienced victimization have a deep-rooted understanding of what injustice feels like. Survivors have critical insights as to what justice ought to look like.

BY A NO NYMO US STUDENT AT MCGILL UNIVERSITY, FACULTY OF LAW

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As first-year law students, we are all required to take ‘Criminal Justice’. The assumption is that this class will be our introduction to Canadian criminal law. Unfortunately, my introduction to the criminal justice system had been seven years prior. When I was fifteen years old, my father was charged with assault causing bodily harm. It wasn’t until our 1L ‘Criminal Justice’ course that I learned the Criminal Code article for the offence my father committed against my body: section 267(b).

Over the course of the year-long class, I re-lived the criminal trial I had faced as a teenager. Like a twisted jigsaw puzzle, I began to put together the pieces of what had happened from a legal perspective. There was a cathartic beauty to being on the other side of things. I had overcome the odds and had somehow landed in an ‘elite law school’. It felt like perhaps my childhood trauma was engendering something worthwhile. I was excited to be able to represent the voice of victims, and to have the legal tools to alter the outcomes for other young girls. I could not go back and be the voice for my fifteen-year-old self, but I could be an informed advocate for others. However, this idealization of my experience masked a much more sinister truth.

In reality, my education in Criminal Justice was one of pain and difficulty. I would often have anxiety attacks before walking into the classroom. I felt disassociated in class, and experienced intense flashbacks. I thought I had healed from the trauma I suffered, but it returned with vengeance. Because legal reasoning encourages us to remain objective, I spent my first semester of law school in denial that things were amiss. I was unwilling to accept the emotional impact the class material was having on me. By second semester, I decided to go back to therapy. I also reached out to some close friends in the class for support. Finally, I decided it was time to talk to the faculty administration about what I was experiencing.

A year prior, I had poured my heart out in my admissions personal statement. I had laid my trauma bare for the gaze of the admissions committee. My story of being a survivor of child abuse was the reason I was at McGill Law. Despite this, when I spoke with the administration, they seemed genuinely shocked that I was struggling in Criminal Justice. They went so far as to say that they had never encountered a situation like mine. Statistically, this seems improbable.

We learned in class about the high rates of violence against women, and those numbers are only worse for women of colour. Nonetheless, after my meeting with the administration, I felt very alone. I felt like an anomaly – the problem child of the classroom. I was told that my only option was to seek an individual accommodation through my professor. Thankfully, my professor was incredibly kind and supportive. Her encouragement helped me not only make it through the class, but also helped me cultivate a genuine passion for criminal law.

I now know that I was not the only survivor in that classroom. The network of support at McGill Law is largely informal, but very strong. As acquaintances became friends, we began to share our most vulnerable moments with one another. I heard many heartbreaking stories of folks suffering in silence through triggering content. Reading case law is never easy, and it is made infinitely harder when you see glaring parallels between your experiences and that of the complainant, victim and ultimately survivor.

‘Criminal Justice’ is an unfortunate misnomer. Those of us who have experienced victimization have a deep-rooted understanding of what injustice feels like. Survivors have critical insights as to what justice ought to look like. Law schools have an obligation to survivors.

Our stories of resilience should not only be valued at the admissions stage. Much work lies ahead in creating law school classrooms where survivors feel empowered and valued. It is time the administration undertook that work. Relying on the goodwill of professors to accommodate students and requiring that students share their trauma with those same professors to justify accommodations is a piecemeal solution – we need a cultural shift in pedagogy.

LAW SCHOOL SHOULD NOT BE AN EXERCISE IN RE-VICTIMIZATION. It is imperative that classes are designed in a manner that is trauma-informed to facilitate the participation of all students – including survivors. Law school classes are an opportune space to hear from survivors, and have their firsthand experiences shape the way we learn about and critique the law. To have these conversations, we deserve classrooms that are responsive to the lived realities of the students within them.

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Launching the #BlackatMcGill Campaign: CHALLENGING MCGILL LAW’S 200-YEAR-OLD RACIAL CONTRACT

TRIGGER WARNING: Racism

BY FA NTA LY STUDENT AT MCGILL UNIVERSITY, FACULTY OF LAW

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I was nervous and shaking, but as the floor to the Q&A with Justice Mahmud Jamal, moderated by Dean Robert Leckey, opened up, I knew it was an opportunity to reclaim my power, have my voice heard, and convey that Black students are tired of being denied the very human rights we learn about but that McGill Law administrators have continued to deny us for too long.

October 22, 2021

I raised my hand, was given the right to speak, and noted that I had a question on anti-Black racism. I got up from my seat and stood beside Justice Jamal and Dean Leckey: Today is a very important day, We welcome Justice Jamal back to this campus, but most importantly we are launching the #BlackatMcGill campaign because we are studying at a faculty of law that teaches us about human rights while also teaching us that Black students and Black people in this country are not worthy of these rights.

Dean Leckey is sitting here today and has always been preaching law and diversity but what has he shown us?

Law and white supremacy.

When Black students take the courage and steps to reach out and share the painful experiences of racism and discrimination they experienced, Dean Leckey has demonstrated silence, silence, silence, nothing.

Every year when Dean Leckey welcomes the incoming class…

[A law student, the President of the Law Students’ Association, walks in front of me and tries to cut me off.]

Don’t interrupt me, this is important because anti-Black racism is killing many people, harming lives, destroying families, and we are in a law faculty where our Dean invites us every year to use our degree and invites us to reflect on what privilege, what contribution will we will make in this society with our law degrees.

Well, what has he shown us? What has he done with his law degree? What has he done with his powerful position to make sure McGill law is welcoming to every student?

Justice Jamal mentioned that, at the University of Toronto, he never felt at home. Today is my first day on campus [this term] because, at McGill, I have never felt at home. Over the past year, we have had a supposed global reckoning on anti-Black racism, yet last year is the year in my life that I and some of my peers have experienced the most racism from this faculty.

Today, we are here to say, we have had enough.

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To all our peers that have consistently demonstrated that you will always turn up, many of you are here wearing black, wearing our pins. Thank you for your support, you represent the best, you represent what we need in this world.

So we need to call upon those sitting here and always doing these beautiful speeches to start walking the talk because we have had enough.

Dean Leckey, how many Black students have you ignored?

Dean Leckey, how many emails of Black students even feeling suicidal have you ignored? We will share them.

I’ve been reflecting a lot, McGill Law has made me think about what impact I want to have in this world.

I started at this faculty thinking, “qu’est-ce que je vais faire comme carrière, quelle domaine?”

Non. Now, I [ask myself]: Whose interest do I want to serve?!

Will I be silent when Black students have to spend their entire academic year submitting their complaints to the Quebec Human Rights Commission?

Dean Leckey, today we ask you, how many more?

Votre mutisme, nous le voyons, mais encore pire, nous le ressentons.

We call upon McGill.

We call upon McGill Administrators, especially you Dean Leckey, and we invite you Justice Jamal as an alumnus of this Faculty to also demand accountability from Dean Leckey.

[Applause, I regained my seat.]

This intervention was a quintessential step in both my personal and professional journey.

Amid the pain, the frustration, the disappointment, and the sadness that comes with trying to navigate an institution so hostile to Black life, I took the courageous step to denounce the violence and the performativity that continued to mask it1. For as long as Black students have to deal with the crushing weight of an institution that continues to deny our humanity, I will not let respectability silence me.

After all, I always took pride in the strides and efforts Black feminism stood for, especially when it came time to challenging a violent status quo. Earlier that year, I read a beautiful piece

by Olutimehin Kuyoki that captures the essence that underpins my activism: “Black feminism recognizes that no one has the authority to determine, investigate or invalidate the limits of someone else’s identity. It is committed to reducing harm and combating violence, especially against people who are disproportionately at risk. At its core, Black feminism is about radically 1 Gabrielle Genest, “Un invité de la Cour suprême interrompu par des accusations de suprématie blanche” (26 octobre 2022), online: Le Délit <https://www.delitfrancais.com/2021/10/26/un-invite-de-la-cour-supreme-interrompu-par-des-accusations-de-suprematie-blanche/>.

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loving people so that they can live well—and minding your damn business the rest of the time.”2 And so, while the circumstances that sparked my intervention were long and meandering, I knew that nothing could excuse the continued administrative inertia in response to unlawful harassment and discrimination at the Faculty of Law and the gross mishandling of disclosures.

I also knew that I had a moral obligation to bring these issues to the fore and at least try to break this harmful cycle of administrative inertia. After all, I have always believed that the strength of an institution rests in the humility that it brings to addressing the failings that inevitably confront it.

Justice Jamal Commits to Holding His Alma Mater Accountable Before the event, I introduced myself to Justice Jamal, handed him a #BlackatMcGill pin, a mask that read “Silence is Violence,” the #BlackatMcGill flyer, and a guide of student testimonies. I went to speak to him once again after the event and briefly raised various incidents of anti-Black racism. I told him I had a request and asked him if he would commit to asking Dean Leckey annually about the retention rate and experiences of Black students.

He was kind, responsive, and agreed. It was important that my intervention not be reduced to the very performativity I often critique. Thus, the steps I took after were equally important.

Although McGill administrators have chosen to prescind from their obligations to intervene in serious matters of discrimination and harassment to the grave detriment of Black students, I am encouraged that Justice Mahmud Jamal, the first person of colour appointed to Supreme Court of Canada, committed to demanding better for Black students at McGill Law.

2 Olutimehin Kuyoki, “Your Power Ends Where Mine Begins: The Redeeming Freedom of Queerness” (18 August 2021), online: Republic < https://republic.com.ng/august-september-2021/redeeming-freedom-queerness/>.

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So?

TRIGGER WARNING: Racism

Our institutions should be changing. Audiences in lecture halls now embody the politicized issues that were once mere topics of abstraction amongst a largely monolithic academic community. For some reason, it has been decided that the best way to deal with this is to treat the change as immaterial. Our diversity is only valuable until it becomes a disruption.

BY DA NA-KAYE MATTHE WS STUDENT AT MCGILL UNIVERSITY, FACULTY OF LAW

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Oct. 22nd, 2021 13:29 Are you seeing this?

On the Jamal event?1The girl attacking the faculty and Dean Leckey?

I ignored his texts at first, but he asked me again once we'd settled into our next class together. “Did you see it?” he reiterated.

I gave him a sidelong glance, "You mean when she raised her hand, went to the front of the room, said her piece and sat down once asked? That attack?"

He looked at me for a moment and pursed his lips, “Ok” he conceded. “But, did you hear what she said? She said she can't come to class because she feels 'oppressed every day at this school’.” His incredulity felt nearly physical, suffusing every word.

I admittedly hadn't heard her say that. My Zoom had been acting up.

“Do you feel that way?” he prompted at my silence.

The ‘she’ is Fanta Ly, and she is black. #Black@McGill So am I; hence the question.

Before you ask, no, the asker was not.

“Not really,” I shrugged, but I quickly continued before he could respond, “So? That's how she feels. And to be fair, I've only been here a month.”

That isn’t to say that I enter institutions holding my breath for an inevitable racist scandal, but my past experiences have taught me to never be surprised when they do happen.

Being a marginalized person can feel like questioning your own sanity every day.

Was that an honest mistake or a microaggression?

Did they mean what I think they meant?

Does it matter if they did?

Should I say something, should I say something, should I say something?

During my final year at the University of Ottawa, a professor was temporarily suspended for saying the N-word in class and then, in response to a student’s complaint, suggesting the slur’s appropriateness should be debated in the classroom.2 I remember that time. I remember sitting upright in bed, crying angry tears, and feeling like a fool as I wiped them away.

It felt like that situation touched on everything: academic integrity, respect for diversity,

1 See Gabrielle Genest, "Un invité de la Cour suprême interrompu par des accusations de suprématie blanche" (26 October 2021), online: Le Délit <https://www.delitfrancais.com/2021/10/26/un-invite-de-la-cour-supreme-interrompu-par-des-accusations-de-suprematie-blanche/>.

2 See Joe Friesen, “University of Ottawa professor at centre of controversy involving racial slur says she regrets actions” (21 October 2020), online: The Globe and Mail <https://www.theglobeandmail.com/canada/article-university-of-ottawa-professor-at-centre-of-controversy-says-she/>.

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I’d always conceptualized the issue by imagining the professor’s two dichotomous options: Use a slur in class without doing the Or, Discuss the same substantive content necessary work to address its inherent power without using the slur outright. imbalance and fraught history.

Thus creating boundaries in the classroom Thus showing a lack of respect for her While still managing to discuss the SAME students; SUBSTANTIVE CONTENT. Opening her students up for attack from illmeaning peers; and Asking students to argue for their dignity whilst their dignity is simultaneously abused by the continued usage of a slur

I tried to explain this simple decision to one of my own professors, who’d signed a controversial letter of support for her.4 I understood that he wanted to support his colleague and was wary of censorship, but I wanted him to understand why I needed him – as my professor – to respect my very dignity.

He almost cheerfully misunderstood my point of view and waved away most of my points. There was no hostility – just dismissal. Somehow, that was worse.

So I buried my face in my damp pillow. And I felt like a fool.

I still carry the scar of that experience everywhere I go, including here to McGill.

I am very aware that my 'diverse identity' is only interesting until it is a liability. It is only valuable until it becomes a disruption.

And those realities echoed in my head when my classmate asked me his question: "Do you feel that way?"

I re-watched the clip of the event later. I heard the quiver in her voice.

And I remembered crying in my bed and feeling foolish.

Questioning my own sanity.

But I wasn’t foolish and my god, neither was she.

I later asked Fanta about the moment. I heard her mirthless laugh as she expanded on 3 See Benjamin Schingler, “Quebec premier warns of 'censorship police' after Ottawa professor suspended for saying N-word” (20 October 2020), online: CBC News <https://www.cbc.ca/news/canada/montreal/quebec-university-of-ottawa-professor-1.5767737>.

4 See Laura Glowacki, “Students decry letter defending N-word use at the University of Ottawa” (20 October 2020), online: CBC News <https://www.cbc.ca/news/canada/ottawa/university-of-ottawa-professor-racism-1.5768730>.

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the context.

I felt the raised skin of my scar. I heard every desperate, Should I say something? Should I say something? Should I say something?

“Do you feel that way?”

“Not really,” I said.

“Not yet,” I meant.

Listening to Fanta’s story felt like a future I’d already lived once.

During the N-word incident, I kept arguing to anyone who'd listen that our institutions should be changing. Audiences in lecture halls now embody the politicized issues that were once mere topics of abstraction amongst a largely monolithic academic community. For some reason, it has been decided that the best way to deal with this is to treat the change as immaterial. Our diversity is only valuable until it becomes a disruption.

But it should be a disruption.

We need to learn how to speak to each other. What does respect look like now? What does tolerance look like now? What does challenge look like now?

These discussions and the emotions they elicit have inherent value. My background is in social science and the crux of that field is its humanity. Humanity is interesting because of the emotions, the identities and complexities of people. Humanity is where law lives. It is what makes our field valuable.

When my classmate asked me, “Do you feel that way?” he assumed that my experience could somehow invalidate Fanta’s experience. One person's story is an anomaly, two people's perhaps hints at a pattern. No pattern and no problem.

I disagree.

I didn’t feel that way that day. I don't know if one day I will. I won't be surprised if one day I do.

But I remember every whispered Should I say something? And my professor’s benign smile as he batted each one away.

And I remember crying in my bed, feeling like a fool.

But, god, I know I’m not a fool and neither is she.

And so I’ll challenge you too, “So? That's how she feels.”

And that’s valuable.

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On M’a Dit De Ne Pas Parler

TRIGGER WARNING: Sexual violence

PA R I SA B EL L E CÔ TÉ ÉTUDIANTE À LA FACULTÉ DE DROIT À MCGILL

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épilogue j’ai écrit ce texte, hier dans la nuit. j’ai écrit ce texte, telle une complainte qui sortait de mes entrailles chaque mot coulait de mes pensées avant de franchir mes lèvres en un soupir. et de n’atteindre aucun papier. j’ai écrit ce texte sur la voile de mes rêves afin que la peur qui a tourmenté une petite fille puisse enfin me quitter.

On m’a dit de ne pas parler on m’a dit de ne pas parler lorsque je n’étais qu’un enfant. c’était la voix de la religion qui me parlait. on m’a appris la honte et la culpabilité. qu’une femme se doit d’être chaste, pure, douce docile, clémente, acceptante je ne pouvais comprendre ce qui m’arrivait, mais je pouvais comprendre la force du silence qui allait celer mon enfance dans le pire des tabous je suis devenue muette on m’a dit de ne pas parler cette fois, c’était la loi qui déchirait les tympans de ma conscience la culpabilité était déjà bien installée alors ne fut nécessaire qu’une rationalisation tordue d’une enfant victime pour comprendre que les maux terrés au fond de mon être mènerait mon père au pénitencier je suis restée muette on m’a dit de ne pas parler c’était les mots de la mort parce qu’une autre victime avait parlé la vie l’avait quitté alors qu’il pendait au bout d’une branche tel une feuille qui tient toujours malgré le froid de l’hiver je n’ai pas parlé. pas à ma mère

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on m’a dit de ne pas parlé alors je suis allée voir voir ceux qui avait parlé je n’avais que 18 ans, elle n’en avait que 15 ses parents étaient décimés par la mort de mon père la culpabilité les enlaçait j’ai parlé, je me souviens pas pour moi, mais pour cette enfant a demi-mots je leur ai dit que moi aussi on m’a dit de ne pas parler mes épaules détrempées par les larmes de ma mère elle l’avait su un baiser langoureux de la culpabilité se déposa sur son âme elle restera sous son emprise jusqu’à ce jour on m’avait dit de ne pas parler parce que je n’avais pas d’aide seule à affronter mon dur passé on m’a dit de ne pas parler un parfait inconnu avec qui je causais dans les ruelle de Zagreb il pausait des questions je fournissais de l’information puis il a su il m’a chargé de sa honte et il est parti dans la nuit on m’avait dit de ne pas en parler une marche silencieuse vers le passé un monologue qui n’atterri sur aucune conscience mon agresseur quémandait sa rédemption à chaque pas vers le soleil couchant

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on m’avait dit de ne pas parler ça ne servait à rien l’écho de mes maux sur les murs des auditoriums à côté de moi, d’autres avaient plus de diplômes leurs voix portaient même si c’était mon témoignage qui était la graine de ces conférences le fruit était maintenant pourri ma solitude agrandie on m’a dit de ne pas parler un policier, une avocate le but, protéger mon dossier le prix à payer pour briser le silence le tout en attendant que dame justice frappe et rééquilibre mon monde je ne t’ai pas écouté j’avais besoin de support avec une peur infinie j’ai ouvert mon cœur brisé à quelques personnes je croyais qu’elles partiraient, contaminées comme le gars de Zagreb mais elles sont là, encore maintenant On lui a dit de ne pas parler revenant de sa déposition le corps qui frémissait encore d’inquiétude il faisait ça pour moi mon frère a témoigné Comment quérir dans tout ce silence Le tabou a volé mon enfance Je me débats pour trouver la lumière Et mettre fin au cycle Des générations de femmes victimes Ça se termine maintenant.

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La Diffamation en Droit Civil et Les Dénonciations de Violence Sexuelles

TRIGGER WARNING: Violences sexuelles

Bien que les tribunaux ne se soient pas encore prononcés dans le contexte d’une dénonciation d’agression sexuelle, ils pourraient considérer qu’une dénonciation dans le but de l’intérêt public, c’est-à-dire pour avertir d’autres victimes potentielles, remplit le critère du juste motif .

PA R S HI TAO ZHA NG ÉTUDIANTE À LA FACULTÉ DE DROIT À MCGILL

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Lorsque le droit est impuissant pour aider les survivant•es de violences sexuelles, plusieurs d’entre eux et elles choisissent de dénoncer publiquement leurs agresseur•es pour protéger les autres. Cependant, les recours juridiques en diffamation sont souvent utilisés pour réduire au silence ces personnes courageuses. Cet article examinera le droit de la diffamation au Québec, les risques potentiels de poursuite et les critères de preuve.

Droit de la diffamation au Québec La diffamation en droit civil se situe à l’intersection du Code civil du Québec et de la Charte québécoise des droits et libertés. En effet, elle met en opposition deux valeurs sociales primordiales, la liberté d’expression et le droit à la réputation, dans le contexte des relations entre citoyens.

Au Québec, le Code civil ne prévoit pas de recours précis pour atteinte à la réputation, mais l’englobe plutôt sous le régime général de l’obligation de diligence délimitée par l’article 1457. Conformément à ce dernier, le demandeur doit prouver l’existence d’une faute, ainsi que celle d’un préjudice qui en résulte et un lien de causalité. Comme le Code civil est plutôt vague sur ce qui constitue une faute, l’évolution de la jurisprudence a permis de poser des critères plus clairs. En particulier, l’arrêt Prud’homme énumère trois scénarios susceptibles d’engager la responsabilité civile en diffamation. Le premier survient lorsqu’une personne diffuse des rumeurs néfastes à l’égard d’une autre tout en les sachant fausses. Le deuxième a lieu lorsqu’une personne tient des propos désagréables sur une autre alors qu’elle devrait raisonnablement les savoir faux Le troisième surgit lorsqu’une personne tient des propos défavorables, mais vrais, à propos d’une autre personne sans justes motifs1.

Comme le taux de fausses accusations d’agression sexuelle est estimé à environ 0,5%, il s’agit du troisième scénario qu’il est important d’aborder2. En l’occurrence, il est possible d’être responsable pour diffamation lorsqu’une personne partage des informations nuisibles mais authentiques sur une personne « sans justes motifs »3. Qu’est-ce qui est considéré comme un juste motif? Les motifs raisonnables que la jurisprudence a acceptés dans le passé incluent l’intérêt public, la critique et la caricature. Bien que les tribunaux ne se soient pas encore prononcés dans le contexte d’une dénonciation d’agression sexuelle, ils pourraient considérer qu’une dénonciation dans le but de l’intérêt public, c’est-à-dire pour avertir d’autres victimes potentielles, remplit le critère du juste motif4.

En somme, le droit civil stipule qu’il est théoriquement possible d’être responsable pour diffamation même lorsque l’information diffusée est véridique. Au contraire, l’authenticité des propos tenus est une défense absolue en common law, c’est-à-dire qu’ils ne peuvent pas être diffamatoires s’ils sont prouvés comme étant véridiques.

Recours potentiels des agresseur•es présumé•es Mise en demeure Une mise en demeure est une lettre d’avocat que la personne visée par la dénonciation pourrait envoyer à la victime, lui intimant de retirer ses propos sous peine de poursuite. Il faut comprendre que même si la peur et le traumatisme que les victimes peuvent ressentir à l’égard 1

Voir Prud’homme c Prud’homme, 2002 CSC 85 aux para 35—37 [Prud’homme].

2 Voir Katie Heaney, “Almost No One Is Falsely Accused of Rape”, The Cut [New York] (5 octobre 2018), en ligne: < https://www.thecut.com/article/false-rape-accusations.html>.

3

Voir ibid au para 36.

4 Voir Michaël Lessard, « Le droit protège-t-il la réputation des agresseurs ? », La Presse canadienne (15 juillet 2020), en ligne : < www.lapresse.ca/debats/opinions/2020-07-15/le-droit-protege-t-il-la-reputation-des-agresseurs.php>.

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de la réception de la mise en demeure soient bien réels, celle-ci est souvent employée pour menacer et intimider. Même si une poursuite en diffamation est toujours possible, les procès au civil coûtent cher, sont extrêmement complexes et avantagent rarement le•a demandeur•euse.

Pour citer le juriste Michaël Lessard, « une mise en demeure est plus vite envoyée qu’un procès en diffamation n’est gagné »5.

Injonction Après une mise en demeure, une injonction peut être demandée pour intimer à la victime de supprimer sa dénonciation en ligne. Le fardeau de preuve du•de la demandeur•euse pour une injonction concernant des propos diffamatoires est plus élevé, car cela met en jeu la liberté d’expression. Selon l’arrêt Champagne, il y a trois critères le•a demandeur•euse doit satisfaire6.

Le premier est la nature diffamatoire des propos. Pour cela, l’agresseur•e doit démontrer que sa situation correspond à l’un des trois scénarios énoncés dans Prud’homme : malice, négligence ou diffusion de la vérité sans justes motifs. Le deuxième constitue à établir l’existence d’un préjudice sérieux ou irréparable occasionné par les propos tenus et le troisième, à prouver que l’intérêt de l’agresseur l’emporte sur celui de la victime. Puisque les propos sur les réseaux sociaux peuvent être diffusés et partagés rapidement, il est probable que les deux derniers éléments fassent pencher le juge en faveur du demandeur ou de la demandeuse. Néanmoins, ceci tient pour acquis que l’agresseur ait réussi à satisfaire le premier critère, ce qui est une mission difficile en soi7.

Poursuite au civil Enfin, un•e agresseur•e peut entamer une poursuite au civil pour dommages et intérêts contre sa victime. Toutefois, Me Lessard soutient que trois éléments cruciaux font en sorte qu’un procès ne sera souvent pas bénéfique pour iel8.

Tout d’abord, un recours en diffamation engendre la confrontation de deux droits fondamentaux à une société démocratique : le droit à l’expression, protégé par l’article 3 de la Charte québécoise, et le droit à la sauvegarde de la réputation d’autrui, protégé par l’article 4 de la Charte québécoise et l’article 35 du Code civil du Québec. Une autre valeur connexe, celle du droit à l’information, est également en jeu. EN SACHANT QU’UNE DÉCISION PEUT

AVOIR DES IMPACTS DURABLES SUR LE DROIT DE LA DIFFAMATION ET SUR LES RAPPORTS ENTRE INDIVIDUS, LES TRIBUNAUX SERONT EXTRÊMEMENT PRUDENTS QUANT À L’ACCORD D’UNE COMPENSATION FINANCIÈRE. Une récente

décision de la Cour suprême du Canada sur la discrimination, Ward c Québec, a d’autant plus confirmé que la liberté d’expression est indispensable en droit civil9.

Ensuite, il est difficile de prouver la nature diffamatoire d’une dénonciation. Si l’agresseur•e argue que les propos tenus sont faux, iel doit alors soumettre des preuves convaincantes, appeler des témoins et être interrogé•e de façon détaillée par l’avocat de la partie adverse. S’iel soutient que la situation fait partie du troisième scénario dans Prud’homme, c’est-à-dire que la dénonciation n’a pas de justes motifs, ce serait avouer implicitement la véracité des propos ou son incapacité à démontrer le contraire10.

5

Voir Ibid.

6 Voir Chantal Paquet, « L’injonction en matière de diffamation en ligne et la demande en dommagesintérêts » (23 septembre 2018), en ligne (blogue) : Alepin Gauthier < www.alepin.com/fr/publications/publication-generale/linjonction-en-matiere-de-diffamation-en-ligne-et-la-demande-en-dommagesinterets>.

7

Voir ibid.

8

Voir Lessard, supra note 4.

9

Voir Ward c. Québec, 2021 CSC 43 aux para 53—62.

10

Voir Lessard, supra note 4.

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Finalement, lors du procès, le ou la survivant•e peut faire une demande reconventionnelle pour violences sexuelles, c’est-à-dire exiger que l’agresseur•e le/la compense pour le dommage qu’iel a subi : frais médicaux, douleurs et souffrances, arrêt de travail ou d’études, etc. En somme, « poursuivre une victime en diffamation, c’est donc risquer qu’elle profite du procès pour prouver l’agression et demander une indemnisation financière importante ! »11.

Pour conclure, beaucoup de victimes vivent avec des traumatismes profonds qui peuvent faire surface lors d’un procès, même s’il finit en leur faveur. Malheureusement, notre système de justice offre peu de mécanismes de réparation pour les survivant•es de violence de nature intime. Il est temps que nous explorions des alternatives pour qu’iels aient accès à de l’aide psychologique et puissent rebâtir leurs vies sans avoir besoin de confronter leur agresseur•e en cour.

11

Voir ibid.

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Footnotes as a Woman in Law

BY MEG H A N A L B ERT STUDENT AT MCGILL UNIVERSITY, FACULTY OF LAW

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Last October, I met with a friend who recently graduated from McGill Law. Some of the things we talked about were the so-called “bro” culture at her firm, how much she hated talking about sports with her predominantly male colleagues, and how much of a self-proclaimed nerdy outsider she felt like at the firm. Ultimately, the “vibe” of the firm was one of the reasons she didn’t feel like it was the right place for her to start her career. We continued to talk about our experiences as women in law. One common experience we shared was feeling overshadowed and ignored in the group projects we did at law school and, specifically, being told condescendingly to “do the footnotes”.

I spoke to other women in law and learned that my friend and I weren’t the only ones with this experience. I suppose the insult isn’t obvious or explicitly gendered, but it was, in my view, a form of subtle sexism when you consider the context. In one group project, I had come up with a critical argument that was to be included with a mere 2 hours to the deadline.

Instead of letting me refine the argument I had proposed, my partner told me to “handle the footnotes” instead. Frankly, there was no prior or explicit indication of my ability to handle footnotes with competency, nor of his ability to develop the argument I proposed better than I could. My friend’s experience was similar – except her male partners chose to complete a project without her entirely, de facto telling her that her most important contribution would be numbered superscript.

Maybe it is true that many women readily and willingly handle footnotes, and that everyone assumes we can because of some social conditioning that indicates we’re more meticulous, or that our “petite” stature and little hands make us better at writing in small fonts.

But the reason this felt gendered to both of us is because neither of us had ever once witnessed a male colleague relegate another man to handling what is commonly accepted as busywork, without him first offering to do so.1 Footnotes, in my view, are the least relevant part of the paper. This is made obvious by the fact that they are in a teeny-tiny font. In fact, they are so irrelevant that I never really learned how to properly use the McGill Cite Guide. They are often handled last minute, day-of, in a frenzy, and unscrupulously.

I loathe the footnote, but I can relate to it. If the footnote were a person, I feel like it would be a woman. Smaller, organized, but essential. Often ignored in favour of the bigger, bolder, and italicized “real” letters. Much like working in a group project and being told to “do the footnotes” instead of the “hard” work, even when you’ve contributed significantly to the substance of the arguments. You mess with the footnote and it’s actually an acceptable error – brushed-off and understandable. You probably won’t even lose a mark for it.2 If a professor corrects a mistake in your footnote, you complain and label them too scrupulous, meticulous, or irritating.3 A bit like the way society can disregard the female complaint by simply labeling it as unnecessarily “woke” or oversensitive.

But, at the end of the day, the footnote is essential. You may not need it until it’s 9 p.m. and you’re searching for evidence to support a point about the law that seems intuitively correct but lacks concrete substantiation.4 You forget about it until you realize that there has been an update in the jurisprudence since the 2016 precedent you’re relying on. You’re grateful for it when drafting research papers, writing facta, and speaking about law to friends and family.

And so, I guess what I’m asking for is for my colleagues to not let this written piece be a “footnote in history”5 and to pay attention to things like work allocation, to who is contributing what ideas, and to listen to their female colleagues rather than command them.

1

Or, command them at all, for that matter.

2

Anecdotally, I never have.

3

Personal experience.

4

Or so I’ve heard.

5

See what I did there?

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A Girl’s Guide to Marriage

I hope this text will resonate with girls who are often pressured to let other people dictate their lives and ambitions.

BY S H I TAO ZH A NG STUDENT AT MCGILL UNIVERSITY, FACULTY OF LAW

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Last year around this time, I was in my last year of CEGEP and a month away from my nineteenth birthday. As I was preparing my law school applications, I learned that I was part of an arranged marriage.

What hurt the most was that my childhood friend’s parents were behind it. People my parents trusted as their own friends. People who came to my house every week and whom I affectionately called “auntie” and “uncle”. People who gave me gifts and money for holidays.

People who saw me as nothing more than a pawn in their own twisted scheme.

The masquerade unraveled when my friend offhandedly mentioned to their parents that I said I didn’t intend to marry in the foreseeable future. Furious, they jumped on the phone and accused my parents of “raising a daughter like this”. They proceeded to explain to my astonished mother that I have been “leading them on” and “whoring around” by having dated their child without the intention of settling down.

More disturbing details were unearthed during the months of harassment that followed.

They called mutual acquaintances to complain about me and revealed how they had been planning for me to marry into their family since I was eleven – eleven! – and that it was for that reason that they befriended my parents in the first place. Unbeknownst to my family, these people carefully laid out a detailed future for me before I graduated elementary school. They even planned where we would live and the children we would have. For them, my life started at eleven and ended at eighteen – the age at which I was seemingly expected to marry.

The entire arrangement was so cartoonishly absurd that I felt like I could only laugh about it. I recounted it to my entourage as a big joke, brushing off their concerns with witty sarcasm.

This was too outlandish for me to take offense.

But deep down, I was ashamed, embarrassed, and angry. Ashamed that details of my personal life have been exposed without my consent. Embarrassed that both my parents and my little brother have been involved in this conflict. And angry that the people who knew me since I was a little girl only saw my value as a baby machine.

Loyal to my “eldest daughter from a first-generation immigrant family” persona, I vowed to ignore the entire fiasco and work harder than ever in school. I thought that if I succeeded academically, I could prove that I was more than just someone’s future daughter-in-law.

The few weeks between the end of applications period and my interview for McGill Law felt like centuries. Every day, I would anxiously check my emails again and again while trying to come to terms with an eventual rejection. During many sleepless nights, I could not help but to dwell on everything these people said about me. I was part of a climate advocacy group.

I played the flute in my school’s orchestra. I practiced rhythmic gymnastics and loved it. I aspired to become a human rights lawyer and help others. Yet the insinuation that I would never amount to anything outside of domestic life weighed heavily on me.

When I received my acceptance from McGill, I was so, so relieved. I had won. I had demonstrated to everyone that I was more than a doll to be manipulated. I could be successful and pursue my ambitions and I didn’t need anyone to force my hand in marriage. I thought the excruciating ordeal has ended and excitedly spent my summer preparing for law school.

But my victory was short-lived. The harassment continued, and so did my fears. Like my 1L classmates, I was soon inundated with readings, assignments, and papers. I continued to hold myself to high standards: do all my readings, participate in extracurriculars, speak up in class. It was not that I did it only for these people, but the urge to prove myself to them overtook the genuine enjoyment of learning.

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I was aware of their hold on me, and I was ashamed. More than that, I was hurt. Hurt that the couple I was saw as relatives would betray me. They had seen me grow up. They practically knew everything about me. But none of it mattered to them in the end. I was a good match, a strategic addition to their household, a desirable set of genes for their lineage. Nothing more.

I can’t pinpoint an exact moment of revelation during which I understood I was wasting my energy. It was more of a gradual process. Slowly, as the semester ended and escalating harassment forced me to take drastic measures, I realized how wrong they were. They preyed upon me when I was just a child. They expected me to marry into their household like I was a trophy to be brought home. They threatened to smear me publicly and blamed me because I had other dreams than marrying at eighteen. They were in the wrong, not me. I didn’t need to prove myself to them because, simply put, I should not care about what they thought. I have always been a people-pleaser, but some people are not meant to be pleased.

Knowing I shouldn’t care and bringing myself not to care are two separate things. It’s difficult, I think. I have been around these people for most of my life and saw them as my elders. I could not help but crave their approval. I could not help but blame myself for having been so naïve as to trust them. However, knowing that I am not responsible eases the feeling of guilt when I can’t do something perfectly on the first try.

It has almost been a year and I am still reeling from the aftermath of these events. I won’t say that this helped me grow because it was cruel and devasting and incredibly damaging.

Instead, I will say that despite everything that transpired, I grew. I started university and volunteer at legal information clinics, where I help people and do what I like. I found my footing and rediscovered the reasons for which I came to law school in the first place. I am thankful, too. Thankful for having a wonderful family and extraordinary friends that supported me from the first day.

Going forward, I am confident that I will strive towards my goals. I am more than someone’s wife or someone’s daughter-in-law. I am a person. A person with her strengths and weaknesses and emotions and failings. And I deserve to be acknowledged as such.

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to BE INTERFAiTH in Law: RELIGION, FAITH, COMMUNITY, & SOLIDARITY IN LAW SCHOOL

BY LA U R A F E R NZ, A ND REA S I M & SAR A SAN ABRIA ( T H E M C G IL L CHRI S TI AN L EG A L FE LLOWSHIP) MEG HAN AL B ERT ( T H E JE WI S H L AW S TUD ENTS ’ ASSOCIAT ION ) KHAD I J A A HMED ( T H E M U S L IM L AW S TUD ENTS ’ ASSOCIAT ION )

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I. Introduction Religion greatly informed the genesis of legal traditions we respect today yet having faith-based conversations is difficult in spaces like law school. Faith-based groups and spaces, however, are crucial to facilitating personal growth, enabling conversations among likeminded people alongside different minds and establishing community within and beyond law school. This is why groups like, the McGill Christian Legal Fellowship (CLF), the Jewish Law Students Association (JLSA), and the Muslim Law Association (MLSA) exist; to nourish our spiritual identities while also increasing the religious literacy of our law school colleagues and various communities we belong to inside and outside our Faculty of Law. Law school oftentimes feels like one long, drawn out ethical dilemma. The cases we read are heavy. The politics at the faculty can be heart-breaking to navigate. The intersectionality of being a first-generation, woman of colour law student can feel overwhelming. Amid all the noise, our religious identities have provided us a community that brings peace and solace.

Many of us started law school months after Bill 21 was enacted. This was tremendously difficult for those of us who choose to be visibly religious like myself. Living in Quebec and studying law, we came to realize we cannot and could not afford to divorce our professions from our identity. It betrays our integrity as Muslims, Jews, and Christians. Attending formal discussions on Bill 21, which justifies religious discrimination through the notwithstanding clause and remove the human experience of the individuals impacted by this law– our experiences and desire to uphold the inherent dignity of those who choose to be visibly religious, inspired us to act collectively.

Every time we gather, we are reminded that our lives are not an abstraction to be discussed in constitutional legal theory. Our conversations highlight that our moral compasses brought us to law school, cultivate community, and help us navigate law school and the legal profession.

We are here, standing together as one, while making space for faith within and outside our individual identities.

For some of us, coming into our first year of law school, we did not expect that it would be a space where we would grow closer to God. However, very early on, we got to organically know other people of faith in the faculty. Conversations about Islamic, Jewish, and Christian law expanded and evolved, and three years later we are still having them.

The Quran says, “we’ve made you into races and tribes, so that you may know one another” (49:13). And so, through our expressions of faith, we found a pre-existing community and formulated new inter and intra-faith communities: our faith became an act of resistance despite the religious discrimination that overshadows our law school experience. Not only do we organize and attend protests against Bill 21, but we also dialogue about other significant topics. Together, we transcend. We are especially proud of our interfaith initiatives which include panels that highlight questions like “Is Religious Law Relevant today?” and topics like “Women of Faith in the Law.” While navigating the legal world, it has been profoundly grounding to have room to talk about how this profession and religious ethics may intersect. During formal recruitment, I was able to pick up the phone and call a friend to discuss what it looked like to maintain a posture of humility when trying to “sell myself.” Having a space to talk through the intersection of religious and professional identity has allowed me to not only discover who I am, but also to remain true to that person. Law school ended up being the place where I would talk about God the most, and where I would see God’s grace reflected to me in the faces of my peers.

II. Spiritual Support Spiritual community encompasses a sense of togetherness: the MLSA and JLSA’s initiatives embody this ethos. The MLSA’s Iftar dinners during Ramadan exemplify this idea of fostering community by creating empowering spaces where individuals feel truly free to

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be their authentic selves. These celebratory meals mark the end of a full day of fasting during Ramadan and truly lend the necessary moral support, courage, and spiritual renewal to persist in the act of fasting and recentring. The JLSA’s shabbat dinners and monthly Mitzvahs (similarly) invite students of all faiths to partake in celebrating Jewish culture and to embody the generosity and openheartedness that are emblematic of the Jewish faith. As likely noted, spiritual support takes many forms but is most often centred around good food, acts of service, prayer and fellowship. These initiatives never fail to remind us that community is built through the smallest, yet most significant acts of solidarity and kindness.

Given the majority of our degrees have been online, having a spiritual community has been an integral part of our law school experience. In my other extracurriculars, it has been difficult to find the time and energy to build community. Still, our little weekly devotionals have provided us with a safe community. And not just any community, but an authentic community where we support each other and give each other the space to engage critically with difficult questions around faith and how we express it.

To us, cultivating a spiritual community is the closest thing to family and a little glimpse of heaven on earth. Fostering a spiritual community is the heartbeat of all three clubs which provide intentional and supportive spaces for us to be our true selves amidst the diverse identities we take on. At MCLF, weekly devotionals are a moment where we can push pause on the chaotic pace of law school demands and pressures and simply decompress and be ourselves.

The focus here is creating intentional spaces for open dialogue and for grounded exploration of difficult questions about feminism, faith, and relationships. While we are often left with more questions than answers, there is something powerful about finally voicing questions we could never voice to our family or our churches. We’re always encouraged by our sessions, which challenge us to orient and reorient the focal point of our attention and adoration, specifically on how our identity and worth stem not from a rigorous profession but from the radical love found in a personal relationship with God. The depth of community fostered through weekly prayer and time in Scripture has truly been one of the highlights of our collective time at McGill.

III. Looking Forward in Our Professions/Looking and Practising Shared Values One of the big questions we repeatedly ask at CLF is “what does it mean to be a Christian Lawyer”? Right off the bat, an outsider may have apprehensions about the idea of mixing law and faith. And rightfully so: faith has been used, and continues to be used, as a justification for egregious rights violations. Instead, we are guided by Romans 13:10 which states “love does no wrong to a neighbour; therefore, love is the fulfilling of the law”. It is my belief that everything we do, including my future legal practice, should be based on love. Love does not seek to harm others, to curtail the rights of others, to tell others what to do with their bodies or whom they can love. Rather, a practice based on love will “defend the oppressed” and “plead the case of the widow” (Isaiah 1:17).

More tangibly, this means advocating for those who are hurt by an unloving system. We have taken this to mean supporting our Muslim sisters who are disproportionately affected by Bill 21, specifically by attending demonstrations opposing Bill 21 and re-sharing MLSA’s posts onto our social media. It equally means supporting the Black Lives Matter movement and engaging with other social justice issues facing our community.

IV. Significance of Having Interfaith Solidarity in Law School When I think about our interfaith community, I am sometimes reminded of Challah, a braided Jewish bread, which, like us, is composed of three interwoven parts that combine to form the whole. Every Shabbat, Challah is the centrepiece of the table and Jews express their gratitude in prayer for how it nourishes us. I feel similar gratitude for our similarly intertwined MCLF, MLSA and JLSA community. I’ve had the privilege to be surrounded by people who

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move me with their passion for important legal and political issues. I’ve been awed by my colleagues’ defiant spirits in their fights against injustice. In facing Bill 21, interfaith solidarity amongst the students of McGill Law was a powerful force of resistance. We embraced collective power. We stood in the snow, outside the courthouse, supporting Khadija Ahmed as she spoke for the MLSA as a visible Muslim woman impacted by this bill. I wrote about this experience in a Canadian Jewish publication and joined the Coalition Against Bill-21. MCLF President Andrea Sim suggested we host an interfaith panel to demonstrate solidarity. We all mobilised our contacts to sign an open letter to the Quebec government. Each group offered something important to this cause, and when combined, our efforts wove into a beautiful and cohesive whole, for which I am grateful.

Interfaith solidarity, to me, is a security blanket, wrapped tightly around us, cushioning every discriminatory blow, xenophobic opinion, and micro-aggression. It is having the confidence that your colleagues will support you when a class comment presents your lived experience, as a religious woman, as mere abstraction. It is talking about hate speech in your constitutional law class — not hypothetically, but as something you’ve confronted and knowing someone else in the room has too. It is the realisation that when a mosque, a synagogue, or a church is attacked by white supremacists, your friends grieve with you. It is the notion that the profession becomes an even kinder place for other women who struggle to find their voice in a world unreflective of them every time one of us enters the profession. When we heard from the “Women of Faith in Law Panel” about their experiences navigating a world not built for them, we learned that we don’t have to sacrifice our beliefs to fill the mould of the legal profession.

The mould should rather be chipped at, eroded or simply broken until it fits us all. Finally, interfaith solidarity is knowing that legal institutions were not constructed to make space for us, but having the Chutzpah1 to believe we can collectively change them.

1

Chutzpah is the Yiddish expression for “audacity” or “boldness”.

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Feminism & Surrogacy: A COMPLICATED STORY

There is neither a singular feminist perspective on surrogacy, nor a perfect solution.

BY S O F I A WATT S J Ö STROM STUDENT AT MCGILL UNIVERSITY, FACULTY OF LAW

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I. Introduction Feminism is sometimes treated as a dogma, but there is no feminist ‘one-size-fits-all’.

Regarding surrogacy contracts, feminists are divided: whereas some are ardent abolitionists, others champion contractual freedom. After providing a brief background, I explain both sides’ arguments, and reflect on how to reconcile the two.

For the purposes of this paper, I refer to “women” and “surrogate mothers,” but would like to acknowledge that not all surrogate child-bearers identify this way.1 I will be exploring the effects on women primarily, although I recognize that surrogacy also impacts other childbearing individuals, sometimes with burdens different or greater for non-female-identifying child-bearers.

II. Background For me, this project started with Baby M,2 a New Jersey Supreme Court case which granted custody to contractual parents and deemed surrogacy contracts illegal on public policy grounds.3 I was initially upset by the court’s reasoning, but after further research into the controversy surrounding surrogacy, I am unsure where I stand. I attempt to grapple with this by presenting both sides, because I think it’s important to discuss. With 1/6 Canadian couples experiencing infertility-related concerns, and same-sex couples wanting children, there is a legitimate, growing need for surrogacy.4 Paid surrogacy is forbidden in Canada, yet the reality here is not utopian.5 Some Canadians also contribute to international exploitation by paying surrogates in other countries. 6 It’s crucial to treat this topic with nuance. Surrogacy may be contentious, but it should not be stigmatized or ignored.

III. Are surrogacy contracts harmful?

A) Harm to Women Of major concern is exploitation. Women cannot freely choose surrogacy if they do so “out of necessity, rather than true choice.” 7 Poverty, debt, and familial concerns may press them into the decision – a decision they may eventually regret. 8 This seems true in countries with fewer regulations. These are the upsetting words of an Indian surrogate mother: “This process is so distressing that I would not have done it even if someone paid me ten times the remuneration, had I been well-off. But I am so desperate [for money] that I would do it even if

1 I use these terms for the sake of clarity and consistency with the sources I read. However, I am mindful that this approach has drawbacks in terms of inclusivity, and apologize for this.

2

See In the Matter of Baby M, 56 USLW (2442) 1232 (NJ Sup Ct 1988) [Baby M].

3

The contracting man and surrogate mother were the genetic parents.

4 See Assisted Human Reproduction Act, SC Canada 2004, c.2, ss. 5–6, 61; Chris Glover, Chelsea Gomez & Laura Clementson, “Why a lack of oversight of surrogacy in Canada leaves some parents feeling taken advantage of”, CBC News (2 March 2020), online: <news.cbc.ca> [perma.cc/news/health/surrogacy-agencies-expenses-costs-oversight-canada-1.5476965].

5

See Glover, Gomez & Clementson, supra note 4.

6 Notably, India has been both a popular surrogacy destination and notoriously exploitative. See Jennifer Lahl, Melinda Tankard Reist & Renate Klein, eds, Broken Bonds: Surrogate Mothers Speak Out (North Geelong: Spinifex Press, 2019) at 91–98 (Adobe Digital Editions); Marcus Agnafors, “The harm argument against surrogacy revisited: two versions not to forget” (2014) 17 Medicine, Health Care & Philosophy 357 at 358 (Springer). However, recent legislation suggests this may change: See “The Surrogacy (Regulation) Bill, 2019”, PRS Legislative Research (17 December 2021), online: <prsindia.org> [perma.cc/billtrack/the-surrogacy-regulation-bill-2019].

7 Lori B. Andrews, “Surrogate Motherhood: The Challenge for Feminists” (1988) 16:1-2 L, Medicine & Health Care at 75 (HeinOnline).

8

See Ibid at 74.

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I was paid just one third the amount.”9 In North America, surrogate mothers are left vulnerable by lacking or inaccessible services, including medical, psychological, and legal support.10 Since some surrogates attest that they were neither coerced nor exploited, surrogacy may not always be exploitative.11 Nevertheless, the risk seems real.

Surrogacy also implies health risks. Women, perhaps especially surrogates, are physically vulnerable during pregnancy, as well as afterwards.12 According to New Jersey’s Supreme Court, a surrogate mother’s consent cannot be voluntary and informed until “[the mother] knows the strength of her bond with her child.”13 This bond may be hormonal.14 After all, “maternal separation”15 is traumatic for other animals. More generally, though, pregnancy and childbirth are physically and emotionally demanding, life-changing events. Some surrogates experience serious, long-lasting mental health problems like depression and PTSD.16 These health risks are concerning.

B) Bodily Autonomy Other feminists argue that surrogacy cannot be outlawed without constraining women’s freedom. In matters like contraception and abortion, bodily autonomy and “reproductive choice”17 are key. Like surrogacy, these decisions involve potential risks and regrets, but women should be free to choose, nonetheless.18 They deserve full contractual freedom, and it is a doctrinal aberration to suggest that surrogates’ consent is not informed or voluntary until after they give birth.19 Moreover, this reasoning presumes that women cannot make rational decisions about their own bodies and lives. Not only is this offensive but it recalls bygone sexisms like coverture.20 In the words of an actual surrogate, “it [is] extremely insulting that there are people saying that, as a woman, I cannot make an informed choice about a pregnancy that I carry.” 21 In fact, only a small percentage of surrogate mothers change their mind. 22 Of course, statistics fail to account for those who wanted to change their minds but did not. Caveat notwithstanding, the case for bodily freedom is both logical and empirical.

Since childbearing is labour, surrogate mothers should also be paid. Surrogacy is physically demanding and contributes to the economy in long-term ways. Not paying surrogates reinforces the longstanding trend undervaluing women’s labour.23 It is therefore counter to substantive gender equality. Simply put, work deserves compensation.

9

Lahl, supra note 6 at 98.

10

See Ibid at 23, 66–68.

11

See Andrews, supra note 7 at 76.

12

See Lahl, supra note 6 at 4

13

Baby M, supra note 2 at 1248.

14

See Agnafors, supra note 6 at 361. But see Andrews, supra note 7 at 75.

15

Lahl, supra note 6 at 10.

16

See Ibid at 15–17. Statistics are wanting.

17

Andrews, supra note 7 at 72.

18

See Ibid at 74.

19

This was the suggestion in Baby M. See Baby M, supra note 2 at 1248; Andrews, supra note 7 at 74–75.

20

See Andrews, supra note 7 at 75.

21

Ibid at 76.

22

See Ibid at 74.

23

See Ibid at 76.

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C) Harm to Children Children are of primary concern in Baby M. The court’s analysis is interestingly critical of capitalism.24 It argues that profit leads surrogacy agencies to sell babies to the “highest bidders”25 rather than the best parents. Furthermore, the court states, “there are, in a civilized society, some things that money cannot buy.”26 Children are one of them. This is because babies should not begin life in an unstable “tug-of-war.”27 Another problem, unraised in Baby M, is parents forcing surrogates to abort ‘flawed’ babies because they’re paying for the best ‘product’.28 There is also a theory suggesting that surrogate babies have more mental and physical health problems.29 Hence, surrogacy may endanger child welfare, which takes precedence over contractual freedom.30 In Baby M, the court invoked child welfare to find surrogacy contracts illegal – and then used the same argument to grant custody to the paying parents.31 Isn’t that weird? Either those parents were exceptionally decent, or child welfare is compatible with surrogacy. Let’s consider the latter. California’s Supreme Court reasoned that parents who intend to have, and thus prepare for, children, will care for them.32 Research shows that adopted children fare as well as their peers, and suggests similar outcomes in surrogates, even when paid.33 Moreover, even when adoptive parents, like biological ones, have issues, child welfare laws ensure that children are not commodified.34 After transfer at birth, surrogate infants are no less stable than any other child.35 Unfortunately, some of the arguments against surrogacy are grounded in stigma and prejudice. It is homophobic to imply, as one of my sources does, that motherless families are destructive and unnatural.36 Likewise, some popular media’s characterization of women as “breeders, […] reproductive meat, [and] prostitutes”37, and their babies as objects or body parts, distorts the debate.38 It also seems like preference for biological couples is ungrounded in fact.39 It may therefore be entirely possible to look out for babies without banning surrogacy.

IV. Can the situation be improved?

Baby M offers two ways of addressing surrogacy’s potential harms: make contracts revocable (or illegal) and remove the element of pay.40 Theoretically, Canada has taken the latter 24

See Ibid at 77.

25

Baby M, supra note 2 at 1248–9.

26

Ibid at 1249.

27

Ibid at 1247; Andrews, supra note 7 at 77.

28

Supposed flaws are usually genetic, though sometimes sexual. See Lahl, supra note 6 at 9, 39.

29

See Agnafors, supra note 6 at 360—361.

30

See Baby M, supra note 2 at 1249.

31

See Ibid at 1260.

32

See Johnson v Calvert, 61 USLW (2721) 86 at 93 (Cal Sup Ct 1993).

33

See Andrews, supra note 7 at 77; Agnafors supra note 6 at 359.

34

See Andrews, supra note 7 at 73.

35

See Ibid at 77.

36

See Lahl, supra note 6 at 12.

37

Andrews, supra note 7 at 74.

38 See Ibid at 74; Ines Colabrese, Julia Crysler & Mary-Catherine McIntosh, “Should surrogate mothers be paid for their labour?”, CBC Radio (30 March 2018), online: <news.cbc.ca> [perma.cc/radio/thecurrent/the-current-formarch-30-2018-1.4600389/should-surrogate-mothers-be-paid-for-their-labour-1.4600397].

39

See Baby M, supra note 2 at 1247.

40

See Ibid at 1248.

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approach, which should address exploitation concerns.41 However, the system is practically rife with problems.42 Surrogacy is costly, so surrogates are reimbursed for all costs related to that undertaking.43 In practice, some surrogates and agencies demand much more money.44 Hardly anyone holds them accountable. Even when paying parents suspect they overpaid a surrogate, they are afraid to investigate, for this would mean that they committed a crime.45 Hence, decriminalization might actually help hold agencies accountable.46 Thus allowing payment would empower parents and compensate surrogates for their work.

Given exploitation concerns, other measures remain necessary. I suggest that stricter industry regulations could be more effective than broad bans. Of course, designing and implementing them properly would take work. They should build on empirical evidence, rather than sensationalized media imagery. IT’S ALSO CRUCIAL TO LISTEN TO SURROGATES AND ADDRESS THEIR CONCERNS.47 Nevertheless, I have some preliminary ideas for this regulatory scheme. Women must be thoroughly evaluated, and educated about potential risks, before becoming surrogates.48 They should receive support before, during and after pregnancy; this includes medical, psychological, and legal support.49 Finally, they must retain bodily autonomy, meaning no forced abortions, and arguably, contracts that remain revocable until birth.50 These are just ideas. The point is that surrogacy’s potential harms can be mitigated.

Conclusion Looking over arguments for and against surrogacy, and considering regulations reveals that there is neither a singular feminist perspective on surrogacy, nor a perfect solution. I wish I could offer a simpler perspective. At least this speaks to a feminist movement that is nuanced, multi-faceted, and thoroughly undogmatic.

41

See Assisted Human Reproduction Act, supra note 4.

42

See Glover, Gomez & Clementson, supra note 4.

43

See Ibid.

44

See Ibid.

45

See Ibid.

46

See Ibid.

47

See Andrews, supra note 7 at 74; Lahl supra note 6 1–2; 18.

48 See Andrews, supra note 7 at 76. See also Lahl, supra note 6 at 19: although Canadian women are already evaluated based on psychology and age, this surrogate felt she should not have passed the test due to issues in her past, including a miscarriage.

49

See Andrews, supra note 7 at 76.

50

See Ibid at 73.

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Works Cited LEGISLATION Assisted Human Reproduction Act, SC Canada 2004, c.2.

JURISPRUDENCE In the Matter of Baby M, 56 USLW (2442) 1232 (NJ Sup Ct 1988).

Johnson v Calvert, 61 USLW (2721) 86 (Cal Sup Ct 1993).

SECONDARY MATERIAL: SCHOLARLY Agnafors, Marcus, “The harm argument against surrogacy revisited: two versions not to forget” (2014) 17 Medicine, Health Care & Philosophy 357.

Andrews, Lori B., “Surrogate Motherhood: The Challenge for Feminists” (1988) 16:1-2 L Med & Health Care.

Lahl, Jennifer, Melinda Tankard Reist & Renate Klein, eds, Broken Bonds: Surrogate Mothers Speak Out (North Geelong: Spinifex Press, 2019).

SECONDARY MATERIAL: CONTEXTUAL Colabrese, Ines, Julia Crysler & Mary-Catherine McIntosh, “Should surrogate mothers be paid for their labour?”, CBC Radio (30 March 2018), online: <news.cbc.ca> [perma.cc/radio/thecurrent/the-current-for-march-30-2018-1.4600389/shouldsurrogate-mothers-be-paid-for-their-labour-1.4600397].

Glover, Chris, Chelsea Gomez & Laura Clementson, “Why a lack of oversight of surrogacy in Canada leaves some parents feeling taken advantage of ”, CBC News (2 March 2020), online: <news.cbc.ca> [perma.cc/news/health/surrogacy-agenciesexpenses-costs-oversight-canada-1.5476965].

“The Surrogacy (Regulation) Bill, 2019”, PRS Legislative Research (17 December 2021), online: <prsindia.org> [perma.cc/billtrack/the-surrogacy-regulation-bill-2019].

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The Charter in Childcare:

HOW FAR DOES SUBSTANTIVE EQUALITY GO IN EARLY CHILDHOOD EDUCATION AND CHILDCARE?

Civil society, the government, and courts must work together to alleviate the worst effects that patriarchy has on women, as the Charter makes absolutely no reference to the positive economic or social entitlements for women.

BY V I CT O RI A F L A HERT Y STUDENT AT MCGILL UNIVERSITY, FACULTY OF LAW

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The alarming lack of affordable and accessible early childhood education and childcare (ECEC) in Canada is a has a disproportionately negative impact on women.1 When applying a gendered analysis to the patchwork of inaccessible ECEC across the Federation, one can see that it excludes women from the workforce, makes them more susceptible to violence, and shifts additional domestic labour onto them.2 Thus, we can view the prohibitively high cost of childcare and the way that it creates economic and social inequality for women as an issue of substantive equality. Substantive equality is a form of equality that goes further than the seemingly negative rights provided by the Canadian Charter of Rights and Freedoms; it uses an intersectional framing to address systemic inequality in a way that challenges norms.3 Social policy choices across Canada suggest the government is willfully unaware that childcare costs are so high that families have to make a choice about relying on the domestic labour of a stay-at-home-parent (a palpable reality for many Canadian families), making it likely that the financial implications of the gender pay gap will incentivize keeping women at home. This leaves them in an economically reliant position that is fertile ground for domestic abuse and exploitation, as several factors of the patriarchy converge to undermine women’s economic independence. This disadvantages women in ways that run counter to the Charter’s principles, especially those found in section 7 which states that everyone has the right to life, liberty and security of the person, in section 15 which states that every individual is equal and protected from discrimination based on sex, and in section 28 which guarantees that the rights and freedoms in the Charter be implemented without discrimination between the sexes.4 When reconciling this with the rights of equality promised by the law embodied in the Charter, one must accept that the law only goes so far in propagating substantive equality and that the redistributive powers of the modern welfare state are direly needed to implement real equality.

Charter rights can be analyzed in consideration of Gerald Rosenberg’s argument that the power of a given constitutional and judicial framework is only as good as its application on the ground.5 The ECEC situation in Canada draws many parallels to Rosenberg’s assessment of the impact of the Supreme Court of the United States 1954 decision Brown v Board of Education.

The Brown decision is famous for its assertion that race-based segregation in American schools was unconstitutional as it violated the equal protection clause of the Fourteenth Amendment, effectively ruling that “separate but equal” could not apply to public education.

Rosenberg points out that this decision was largely symbolic and that its importance is often overstated when examining the reality of the decision’s causal effects.6 The efficacy of Brown may be confined to the symbolic realm when considering whether the power of Brown was truly substantive, seeing as it was congressional and civil society action that ended race-based segregation in the US. Not only did segregation continue after 1954, anti-Black violence actually ballooned in some parts of the US.7 When race-based segregation eventually declined in schools, it was the result of local policy changes, rather than the impact of Brown being felt.

Although a perfect comparison cannot be made between Brown and the Charter, the 1 See Sunil Johal & Thomas Granofsky, “Growing Pains: Childcare in Canada” (2015) Mowat Centre for Policy Innovation at 2.

2 See David Macdonald & Martha Friendly, “Child Care Fees in Canada 2019” (2020) Canadian Centre for Policy Alternatives at 6.

3

See Vrinda Narain, “Mapping Equality Concerns: A Preliminary Exploration” [unpublished].

4 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

5 See Gerald Rosenberg, “Substituting Symbol for Substance: What Did Brown Really Accomplish?”

(2004) 37:2 Political Science and Politics 205 at 205—09.

6

Ibid at 205.

7

Ibid.

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situation of ECEC in Canada suggests that policy and community work need to be a part of the push for substantive equality, as judges and legislators cannot ensure that legal tools make material improvements to women’s equality. Civil society, the government, and courts must work together to alleviate the worst effects that patriarchy has on women, as the Charter makes absolutely no reference to the positive economic or social entitlements for women.8 This is not to put forth critique of the Brown decision or the Charter, as both efforts were valiant and exhibit how law can be a vector of change rather than a follower of public opinion. Nevertheless, the efforts of the rest of Canadian society are needed to give our constitutional rights teeth, as we are currently shortchanging parents, and mothers particularly, by unevenly distributing the costs of childcare between parents, their employers, and the tax-paying public.9 Rosenberg and parents of young children might even argue that the lack of substantive equality in our ECEC system shows the inefficacy of legal tools in sustaining equality.

Rosenberg’s framework for addressing Brown v Board of Education is useful for its emphasis on how public policy and discourse are almost always more effective at shaping society than the rights prescribed by courts are. As it may have been the case in the Brown decision, substantive equality between sexes in Canada is not decided by the Constitution, nor is it decided by the courts. Rather, a more appropriate lens through which to understand Charter rights with regards to sex is to understand the Constitution as providing direction for lawmakers, but not as necessarily guaranteeing that the sexes will in fact experience substantive equality. Doing so is up to the provinces who have taken up the goal of substantive equality in the realm of childcare with varying degrees of verve. With that being said, legal tools like the Charter are important in the creation of precedents and foundations upon which lawmakers can formulate their policies. The Charter was essential in Canada’s trajectory of declaring equality between groups and between individuals. However, it is worth questioning how far the Charter goes in creating substantive equality for Canadian women, especially in terms of their economic equality. Further, it is important to analyze how federalism, which offloads much of the responsibility for social policy to provinces, factors into shaping the inconsistent state of ECEC nationally.

Much in the same way, although the Charter instituted constitutional equality almost 40 years ago, glaring gaps in the equality between the sexes still exists in Canada. The lack of comprehensive ECEC highlights these circumstances. Of course, these are not perfectly contained samples, as the American Constitution and lawmaking bodies differ significantly from their Canadian counterparts. However, accounting for these differences, the logic of Rosenberg’s argument applies well to the case of ECEC in Canada, especially in light of Symes v Canada in which the Supreme Court decided not to seize the opportunity to advocate for greater substantive equality in the realm of ECEC.10 Provincial developments toward systems that produce more equitable results have not been primarily caused by the Constitution, the courts, or even by the market.11 Whenever greater equality took shape within the ECEC system, there was clear evidence of lawmakers taking action to infuse the principles of ss. 15 and 28 into policy and programmes. Even though all provinces are under the same constitutional framework of equality, the drastic interprovincial variations in ECEC show that courts may provide direction to policymakers but cannot determine how seriously we treat constitutional principles. This raises several questions, including: what burden does the Charter place on lawmakers to alleviate substantive 8

See Andrew Petter, “Immaculate Deception: The Charter's Hidden Agenda” (1987) 45:6 Advocate 857.

9

See Ruth Bader Ginsburg, “Gender and the Constitution” (1975) 44:1 U Cin L Rev 1 at 40.

10

See Symes v Canada, [1993] 4 SCR 695, 110 DLR (4th) 470.

11

See Macdonald & Friendly, supra note 2.

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inequality by creating policy that enforces positive rights?12 Further, how can a gender-based framework of policy analysis help fulfill women’s positive rights to life, liberty, and security?

How cosmetic is the Charter in ensuring women’s economic and social equality?13 The situation of ECEC in Canada has long been desperate, in part because the architecture of federalism facilitates a sluggish and uneven application of constitutional rights on the ground.14 It is notable that recent steps taken by the federal government are promising: the Canadian government announced a National Framework for Early Learning and Child Care in 2017, committing to $870 million in annual transfers to the provinces.15 Hopefully, this indicates that the rest of the provinces will soon follow Quebec’s lead in providing childcare that encourages the participation of women in the workforce and thus increases the substantive equality between the sexes.

12

See Rosenberg, supra note 5 at 205.

13 See Claire L'Heureux-Dubé, “It Takes a Vision: The Constitutionalization of Equality in Canada” (2002) 14:2 Yale JL & Feminism 363 at 378.

14 See Rianne Mahon, Christina Bergqvist & Deborah Brennan. “Social Policy Change: Work–family Tensions in Sweden, Australia and Canada” (2016) 50:2 Social Policy & Administration 165 at 176; Johal & Granofsky, supra note 1 at 7.

15 See Katja Repo et al, “The Policies of Childcare and Early Childhood Education: Does Equal Access Matter?”, (Cheltenham UK: Edward Elgar Publishing, 2020) at 18; Karen Bartko. “Alberta $25-a-Day Daycare Expands to 100 More Locations; 6,000 Spaces Created” (25 April 2018), online: Global News <www.globalnews.ca/news/4166956/alberta-25-dollar-daycare-pilot-program-expansion/>; “​​Early Learning and Child Care Agreements”, online: Government of Canada <www.canada.ca/en/early-learning-child-care-agreement/agreementsprovinces-territories.html>.

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Contours –Volume X GRAPHIC DESIGN BY ART VIJAYARATNAM

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contours est un projet visant à cartographier et à donner forme aux contours des débats, des expériences, des préoccupations et des aspirations.

It is a space for women and non-binary individuals’ voices and an invitation for us all to start a conversation.

MCGILL UNIVERSIT Y

FACULTÉ DE DROIT