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contours Volume IX McGill University 2021

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

Editorial Board | Comité de rédaction Sejeong Park (she/her) Managing Editor Directrice de publication

Ana Qarri (she/her) Head English Editor

Raphael Schmieder Gropen (they/them)

Management | Gestion Meghan Albert (she/her) Head manager

Senior Bilingual Editor Rédacteur.rice sénior.e bilingue

Jeanne MayrandThibert (she/her)

Hannah Lazarre (she/her) Senior Manager

Rédactrice séniore francophone

Attou Mamat (she/her)

Aliya Behar (she/her)

Amina Djouaher (she/her) Gestionnaire séniore et trésorière

Rédactrice en chef francophone

Junior English Editor

Claire Henderson-Hamilton (she/her)

Georgia Therriault (she/her)

Senior English Editor

Junior English Editor

Garima Karia (she/her)

Inès Bagaoui-Fradette (she/her)

Senior English Editor

Junior Bilingual Editor Rédactrice juniore bilingue

Vino Wijeyasuriyar (she/her)

Isabelle Baptiste (she/her)

Mey Chiali (she/her)

Senior English Editor

Rédactrice juniore francophone

Gestionnaire juniore

Lara Sioui (she/her) VP Communications

Dominique Grégoire (she/her) Junior Manager

contours

volume ix

“One Place in Montreal” Essays written by the

“Carceral Feminism and Criminal Justice at McGill Law” Julianna Duholke & Zoë Christmas

R ace T he ory C la ss a t y, F a c ul ty o f Law

43 03

Introduction: “Place Becomes Race in Montréal”

“Ayibobo” Hülya Miclisse-Polat

“Rockhead’s Paradise, or what jazz history can teach us about race and space”

Priya S. Gupta

Attou Mamat

“Maisonneuve Monument”

“OnlyFans: The Final Frontier in the Sex Wars?” Natalia Paunic ´

“Leading the Change: The Potential and Power of Women in Law”, on behalf of the CHRLP Elise Malette

“The Act of Belonging” Andie Hoang

“Twice as Good: Black at McGill Law” Anne-Raphaëlle Bolya

[Untitled] Adrienne Tessier

“Making the World Safe for Poetry” Shauna Van Praagh

Shona Musimbe

“COVID-19 x McGill Faculty of Law”

“Montreal Forum” Natalia Koper

“Norgate” Kim-Lan Dan

[Sans titre] Rose Paquet

“Walking Down Canal Lachine” Hannah Young

[Sans titre] Victoria Principe

“From the Weighing Scales to Justice Scales” JF Mur

“Representation of Women and People of Colour in Big Firms in Canada” Preksha Mehta

2021 Crit ic al

McGill Univ erit

vii

Audrey Parent & Camila Franco

“United Union Church” Laura Doyle-Pean

“Hall and Prejudice” Anne-Raphaëlle Bolya

“Monument to Sir John A. Macdonald” Sejeong Park

Afterword: “Trespassing” Sherene Razack

viii

c o nto u r s

By: Sejeong Park

BCL/JD Candidate at McGill Faculty of Law Managing Editor of Contours, Volume IX Contours is a project based at McGill Faculty of Law. McGill University is located on unceded lands that “hold a long and rich history of occupation and stewardship by Indigenous peoples,” and that have “long served as a site of meeting and exchange amongst Indigenous peoples, including the Haudenosaunee and Anishinabeg nations” for millennia through the present day.1 McGill University was founded as a result of a £10,000 bequest from James McGill, West Indian merchant and slave owner who owned at least five identified enslaved Black and Indigenous people.2 McGill University has obvious, direct and profound connections to the histories, the legacies, and the ongoing processes and effects of colonialism and slavery. It is important that Contours – as any group, or individual at McGill – begins its project by situating itself in the context of these histories and the systemic roots of anti-Indigenous, anti-Black racism that they embody. It is especially important that we situate ourselves in this context, given how the ongoing Covid-19 pandemic has laid bare the consequences and effects of centuries of racial and gendered injustice.3 Contours embraces intersectional feminism.4 Contours rejects white feminism and trans-exclusionary radical feminism, as well as all other movements that wield feminist rhetoric in service of white supremacist, colonial, and patriarchal powers. Contours is a space to highlight the voices of people whose experience(s) and insight(s) resist, question, and challenge what is often assumed as “common sense” in the law. Throughout our careers as jurists, we are asked to grapple with the meaning and scope of terms such as “ordinary,” “reasonable,” and “foreseeable.” In the abstract, these terms may seem to be malleable and invite creativity. In practice, however, these terms have been interpreted rigidly and narrowly by powerful jurists, many of them men who hold racist, sexist, ableist, classist, homophobic, transphobic, misogynist, masculinist, patriarchal and/or colonialist beliefs and values.5 For example, parental alienation, a 1 I have written this land acknowledgement by borrowing from the ones written by First Peoples’ House and the Indigenous Initiatives branch of the Office of the Provost and Vice-Principal (Academic) at McGill University. See “Traditional Territory – Land Acknowledgement” (consulted on 4 October 2021), online: First Peoples’ House <https://www.mcgill.ca/fph/welcome/traditional-territory>; “Learn about the Land and Peoples of Tiohtià:ke/Montréal” (consulted on 4 October 2021), online: Indigenous Initiatives <https://www.mcgill.ca/indigenous/land-and-peoples/ learn-about-land-and-peoples-tiohtiake-montreal>. 2 Charmaine A Nelson, Slavery and McGill University: Bicentenary Recommendations (July 2020) at 3—6, online (pdf): Black Canadian Studies <https://www.blackcanadianstudies.com/Recommendations_and_Report. pdf>; “Who was James McGill?” (consulted on 12 October 2021): About McGill <https://www.mcgill.ca/about/history/who-was-james-mcgill>. See also Charmaine A Nelson, “A Brief Overview of Canadian Slavery” in Slavery and McGill University: Bicentenary Recommendations (July 2020) 23, online (pdf): Black Canadian Studies <https://www. blackcanadianstudies.com/Recommendations_and_Report.pdf>; Adelle Blackett, “Follow the Drinking Gourd: Our Road to Teaching Critical Race Theory and Slavery and the Law, Contemplatively, at McGill” (2017) 62:4 McGill LJ 1251. 3 See Nelson, “Slavery and McGill University”, supra note 2. See also Mikki Mendall, Hood Feminism (New York: Penguin Books, 2021). 4 See Kimberlé Crenshaw, “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color” (1990) 43 Stan L Rev 1241. 5 See e.g. Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 1999 CanLII 699 (SCC); Audrey Macklin, “On the Inside Looking In: Foreign Domestic Workers in Canada,” in Wenona Giles and Sedef Arat-Koç, eds, Maid in the Market (Halifax: Fernwood, 1994); Robyn Maynard, “‘Of Whom We Have Too Many’” in Policing Black Lives: State Violence in Canada from Slavery to the Present (Halifax and Winnipeg: Fernwood Publishing, 2017) 158 at 159—161, 179—182; Simone A Browne, “Of ‘Passport Babies’ and ‘Border Control’: The Case of Mavis Baker v Minister of Citizenship and Immigration” (2002) 26:2 Atlantis 97. See also e.g. R v Slatter, 148 OR (3d) 81, 2019 ONCA 807 (CanLII); Janine Benedet and Isabel Grant, “Hearing the Sexual Assault Complaints of Women with Mental Disabilities: Evidentiary and Procedural Issues” (2007) 52:3 McGill LJ 51; Elizabeth Flanagan, “Speaking for the Silenced: Legal

v o l u m e ix

theory that had been developed by a psychiatrist who self-published studies backed by little to no scientific evidence, “attributes a child’s rejection of a parent (often the father) to manipulation and brainwashing by the other parent (often the mother).”6 Despite its questionable foundation and reasoning as well as problematic premises and conclusions, parental alienation “has often been used to punish caring mothers and grant custody to dangerous fathers” since it was introduced in the case law in the 1980s, as it has increasingly been normalized and integrated as a jurisprudential standard in custody cases.7 By being part of the jurisprudence, these views are legitimised as sources of norms and standards, imposed equally on all, even though they were constructed with specific persons in mind. The stories in Contours serve as an invitation and a reminder of the importance of thinking about why the law is the way it is, whose interests the law centers, and what are the (un)intended impacts that a particular law has on different groups of people. I assume that the law has complicated, nuanced and overlapping effects steeped in colonial, patriarchal, racial and gender-based violence, and that writing and reading with a deliberate eye to intersectionality helps us figure out how exactly the law functions. This is why intersectionality shapes the approach and lens in Contours. Contours is also a space that is driven by compassion and empathy. The reality of the legal profession creates higher barriers for women and non-binary people, especially racialized women and racialized non-binary people.8 On the one hand, we all face the pressure of performing the role of an expert, an idea that is central in the legal profession. The more confident we act and sound, the more likely it is that we will be rewarded – the reward could be getting a “win” in court or landing a job. At the same time, we are also constantly faced with implicit biases and stereotypes about the image or the narrative marginalized law students are supposed to have. Examples include the poor Black woman who has fought for her education back in “Africa” and the patient, docile, “model citizen” Asian woman who will quietly agree with others’ views.9 In Contours, marginalized law students and jurists share their lived, embodied experiences of struggling against contradictory expectations and microaggressions, seeking to bring greater awareness to these experiences as well as the reality of their experiences. Je remercie sincèrement tous·tes celles et ceux qui ont participé à la création du IXème volume du journal Contours. Je vous remercie pour tout le temps, toute l’énergie et toute la patience que vous y avez versé. Je vous remercie surtout d’avoir effectué tout le emotional labour, un travail qui continue d’être souvent non reconnu et non récompensé, qui ont été requis pour faire ce projet. À tous·tes les lectrices et lecteurs, je vous souhaite la bienvenue et je vous remercie de soutenir Contours. The essays and poems you are about to read tell narratives and perspectives that question, resist and challenge the homogenising tendencies in the law and the legal profession. All of the stories are personal. Some of these stories touch on sensitive topics that may be triggering to some readers; these stories have been introduced by content warnings. Please take your time and do what you need as you read this journal. Prenez soin de vous et je vous souhaite une très bonne lecture. Advocacy for People with Physical Disabilities Experiencing Domestic Violence” (2017) 40:1 Thomas Jefferson L Rev 51. 6 Suzanne Zaccour, “Does Domestic Violence Disappear from Parental Alienation Cases? Five Lessons from Quebec for Judges, Scholars, and Policymakers” (2020) 33:2 Can J Fam L 301 at 303, 305—14. 7 Ibid at 301. See also Simon Lapierre and Isabelle Côté, “Abused Women and the Threat of Parental Alienation: Shelter Workers’ Perspectives” (2016) 65 Children and Youth Services Review 120. 8 In this Foreword, I have focused on the challenges faced by racialized women and racialized non-binary people who are lawyers or aspiring lawyers, rather than those faced by racialized women and racialized non-binary people who are trying to access legal process as clients. If you are interested in learning more about a “do-no-furtherharm, relational approach to the practice of law,” I recommend listening to the podcast The Trauma-Informed Lawyer hosted by Myrna McCallum (https://thetraumainformedlawyer.simplecast.com/). 9

These examples have been drawn from a friend’s personal experience and my personal experience.

”One Place in Montreal“: Reflections from the 2021 Critical Race Theory Class

One Place in Montreal

co nt o u rs v o l . ix

political distinctions with Indigenous peoples, to the racism of immigration policies, to the gendered policing of spaces in cities today, all juxtaposed against an enduring image of a “nice”, democratic, Canadian society. This volume, and her work more generally, continues to have a profound influence on Critical Race Theory and Legal Theory today.

Place Becomes Race in Montreal By: Priya S. Gupta

Associate Professor at McGill Faculty of Law In her Introduction to a 1993 edited volume Race, Space and the Law: Unmapping a White Settler Society, Professor Sherene Razack presents the urgency of “unmapping” spaces of everyday life:

We read Professor Razack’s essay and others in Race, Space and the Law in our Critical Race Theory class during Spring 2021 at the McGill University Faculty of Law. The students were greatly inspired by Professor Razack and her authors’ way of seeing space, seeing law, and seeing what lies beneath the veneer of the spaces in which we conduct everyday life. We used her work as an inspiration for taking a critical race and geographical lens to the role of law in racializing spaces in our city of Montreal. Here are the questions which framed the assignment: • First, tell us about the place. Where is it? What is it? What is it meant for? If it is built, for whom was it built and when?

“In unmapping, there is an important relationship between identity and space. What is being imagined or projected on to specific spaces and bodies, and what is being enacted there? Who do white citizens know themselves to be and how much does an identity of dominance rely upon keeping racial Others firmly in place? How are people kept in their place? And, finally, how does place become race? We ask these questions here in the fervent belief that white settler societies can transcend their bloody beginnings and contemporary inequalities by remembering and confronting the racial hierarchies that structure our lives.”1 Nearly three decades on, Professor Razack’s insights are no less relevant. Her project focuses on Canada’s spatialisation of race through law. It takes us from the land claims legalized through the property doctrines of the colonizers to the construction of a national mythology of an “empty... arctic land.. populated by white men of grit, a robust Northern race pitting themselves against the harshness of the climate.”2 We see how the national identity of a population is bound up with (an imagined, pristine) landscape: an “open, snow-covered land” with “forests, lakes, and the occasional voyageur (trapper),”3 and how doing so produced a certain formation of a race. Land and people are understood together for their whiteness, re-imagined and shed of their topographical complexities, their history and their context, as well as their encounters with Indigenous peoples. Professor Razack’s Introduction and the collection of essays which she brings together in the volume take this mythology forward in time – to the national understandings of immigration, citizenship, race, and space that continue to structure everyday life in Canada. She describes this process: “The land, once empty and later populated by hardy settlers, is now besieged and crowded by Third World refugees and migrants who are drawn to Canada by the legendary niceness of European Canadians, their well-known commitment to democracy, and the bounty of their land. The "crowds" at the border threaten the calm, ordered spaces of the original inhabitants. A specific geographical imagination is clearly traceable in the story of origins told in anti-immigration rhetoric, operating as metaphor but also enabling material practices such as the increased policing of the border and of bodies of colour.”4 Through her work, Professor Razack illustrates the complexity of the co-formation of race with gender and class in Canada: from the settler construction of racial and

• Next, tell us about its racialization. Is the racialization visible? What makes the place “racialized”? How can we understand the experiences of people of color in and around that space? (You might also address the exclusion of people of color as well.) □ You might share personal or communal narratives about the place. What does it mean to you and why? □ You might engage literary/film/ musical/artistic references to the place. • Finally, how have law / governance/ norms /social practices shaped the place? Reading the students’ contributions in class and now in this volume is a privilege. They take us from that monuments that adorn the city to sites of protest and of living, to cafés with food and music, to places of worship and organizing. Anne-Raphaëlle Bolya recounts the story of Concordia University’s 1969 “Computer Riot” in her essay aptly titled “Hall and Prejudice.” Hülya Miclisse-Polat takes us to the neighborhood of Saint Michel and its Haitian immigrant community, and Natalia Koper tells us the story of Fred Christie being denied entry to the Montreal Forum, which triggered the well-known case of Christie v The York Corporation.5 Hannah Young walks along the Lachine Canal with us, and Kim-Lan Dam shares a very personal history of Vietnamese immigrant life in the neighborhood of Norgate. In Little Burgundy, Attou Mamat brings us the sounds of jazz from Rockhead’s Paradise Café and Laura Doyle Péan traces the history of the Union United Church. Sejeong Park takes a long, critical look at the monument in honour of Sir John A. Macdonald in Montréal’s Place du Canada, and Shona Musimbe turns our gaze to the statute of an unnamed Haudenosaunee (Iroquois) man in the Place d'Armes. Xin Yue Zhang designed the beautiful accompanying map, and Sejeong Park took on the significant responsibility of publishing these essays in the volume of Contours you now have in front of you. It was a special class, for this project as well as for our solidarity in navigating life and learning during the Covid-19 pandemic. Thank you to my students and to you, Reader, for keeping this project relevant and shared.

1 See Sherene Razack, “When Place Becomes Race” in Sherene Razack, ed, Race, Space and the Law: Unmapping a White Settler Society (Between the Lines, 2000) 5. 2

Ibid at 3.

Ibid at 4.

Christie v The York Corporation, 1939 CanLII 39 (SCC), [1940] SCR 139.

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Ayibobo!, a Haitian expression that indicates either joy, pain, or prayer symbolizes the varying emotions that the community of Saint-Michel in Montreal has gone through and continues to go through. This is a story of resilience, of pain, and of hope. I was introduced to the vibrant Saint-Michel community through family, friends, and now it continues to be a small piece of home as I navigate law school. By the 1980s, a large population of Haitian migrants settled in the Saint-Michel, a North-East district of Montreal.1 This was not by coincidence. Canada actively participated in neoliberal and neocolonial practices that caused massive displacement of Haitians.2 Despite the relatively high education of Haitian immigrants in the 1970s and 80s, many were forced into limited employment options such as in the manufacturing and services sector and limited housing options as well.3 The guise of multiculturism created work programs and some opportunities for Haitian migrants although it actually re-created many of the same exploitative practices practiced in slavery, with harsh working conditions in an unwelcoming environment. “Black subjugation was merely transformed and rebranded for a multicultural era.” 4 So yes, this history is one of isolation, subjugation, and exclusion, yet members of the community have thrived in spite of oppressive forces. Maison d’Haïti, an association created by young Haitian students and activists, for generations, transformed the community by addressing issues such as workers’ rights, anti-Black racism and discrimination, tensions in the taxi industry, gender equality, racial profiling, and more.5 There is no doubt that through the process of subjugation and exclusion, residents of Saint-Michel have created their own space and identity 6as a Haitian diaspora with a unique, difficult, and rich story. Today, the neighborhood of Saint Michel is part of the Villeray-Saint-Michel-Parc-Extension borough, and you’ll find not only a significant Haitian population but also Italian, Middle Eastern and Latino. The area also has many parks, and the Tohu- Cirque du Soleil’s international headquarters and artist’s residence. My favorite part of Saint-Michel is being able to find Haitian spices and herbs that are difficult to find in other parts of the city. I especially love going to Haitian CasseCroûtes (quick take-out restaurants), such Casse-croûte Sissi & Paul, on Jean-Talon street where I can get my favorite Poulet Creole, or stewed chicken, or a quick spicy Haitian codfish patty. The culture, music, and language permeate the rest of Montreal. It’s not uncommon to overhear conversations by non-Haitian youth employing Creole terms in their everyday conversations, such as “Bagay” or “Sak Pase.” Unfortunately, Saint-Michel still serves as a snow dumping ground for the rest of Montréal, which makes mobility and also development very difficult in the neighborhood, it is stifling the potential of this culturally rich area. Working at the Legal Clinic in Saint-Michel reminds me of the continued state violence and surveillance inflicted upon the residents, how much work we still have to do, and how resilient the community remains.

1 “About”, History Of Montreal Blacks | Mois Histoire des Noirs (consulted on 9 March 2021), online: <https://moishistoiredesnoirs.com/en/about/history-of-montreal-blacks>. 2 Robyn Maynard, “Chapter 2: The Black Side of the Mozaic” in Policing Black Lives: State Violence in Canada from Slavery to the Present (Winnipeg: Fernwood Publishing, 2017).

HÜLYA MICLISSE-POLAT BCL/JD Candidate at McGill Faculty of Law

3 Marjorie Villefranche, “La Maison d’Haïti, 45 ans d’histoire”. Mémoires des montréalais (20 February 2018), online: <https://ville.montreal.qc.ca/memoiresdesmontrealais/la-maison-dhaiti-45-ans-dhistoire> [“La Maison d’Haïti”]. 4

See Maynard, supra note 2.

See “La Maison d’Haïti,” supra note 3.

6 Sherene Razack, “When Place Becomes Race” in Sherene Razack, ed, Race, Space and the Law: Unmapping a White Settler Society (Toronto: Between the Lines, 2000) 1.

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Pictures of Maison d’Haiti, Source: Maison d’Haiti Archives 1989

Pictures of Maison d’Haiti, Source: Maison d’Haiti Archives 2017

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co nt o u rs v o l . ix

During my first year at McGill Law, I lived in Solin Hall residence, a three-minute walk away from Lionel-Groulx metro station, in Saint-Henri. Early in September, strolling around the neighbourhood, I came across a poster advertising a nighttime film screening of Whiplash, in the nearby Sainte-Cunégonde Park. I decided to attend. That evening, I learned that my residence was right next to Little Burgundy, the cradle of Montreal jazz. Later, I found out how inseparable that history is from the Black community that pioneered it. Little Burgundy was mostly populated by the Black community after the arrival, in the late 19th century and early 20th century, of African American and Caribbean immigrants, as well as African Canadians from Ontario and the Maritimes, most seeking employment as train porters or domestic workers.1 The Black community in Little Burgundy organized around issues related to poverty and racism; the Union Congregational Church (now Union United Church) was born out of such organizing.2 That church was central not only to community-building, but also to the musical training of performers who grew up in the neighbourhood,3 including famous jazz pianist Oscar Peterson.4

Or What Jazz History Can Teach Us About Race and Space

How did jazz come to Little Burgundy, and Montreal more generally? In 1919, the United States entered its prohibition era; rich white Americans would ride the train to Montreal, the only major urban center in North America with legal bars, for booze and entertainment,5 and so would many African American musicians who would perform in the city’s clubs.6 (Knowing this now, the little clothing store named “Prohibition,” which I walked by every time I went grocery shopping, holds entirely new meaning.) Thus, the Harlem Renaissance was brought to Montreal.7 When prestigious Black jazz musicians would perform in the clubs, only white patrons were allowed in.8 This exclusion of Black people from spaces acted simultaneously as a restriction of Black movement and as an assertion of white power—a dynamic reminiscent of what Sherene Razack identifies as the Black body’s immobility and the white body’s mobility9 (it is worth noting again that most of the night clubs’ clientele were tourists). In response to that exclusion, in 1935, Rufus Rockhead established the first Black-owned nightclub in Montreal, Rockhead’s Paradise.10 Located at the corner of Sainte-Antoine and de la Montagne, close to Little Burgundy, Rockhead’s was open to all, regardless of colour.11 Through the decades, it hosted some of the greatest jazz musicians of all time: Louis Armstrong, Billie Holiday, Ella Fitzgerald, Nina Simone, and, of course, local talent Oscar Peterson and Oliver 1 See Arrondissement du Sud-Ouest, Anne Gombert & Olivier Paré, “ La Petite-Bourgogne et le jazz” (8 September 2017), online: Mémoires des Montréalais <ville.montreal.qc.ca/memoiresdesmontrealais/la-petite-bourgogne-et-le-jazz>. 2 Nicolas Bednarz, « Les quartiers disparus de Montréal : la Petite-Bourgogne. 1965-1967 » (18 December 2014), online: Archives de Montréal <archivesdemontreal.com/2014/12/18/les-quartiers-disparus-de-montreal-la-petitebourgogne-1965-1967>. 3 See Meilan Lam, dir, Show Girls, film (Montreal: National Film Board of Canada, 1998), online: <www.nfb. ca/film/show-girls>. 4

See Arrondissement du Sud-Ouest, Gombert & Paré, supra note 1.

See Lam, supra note 3.

6 See Olivier Paré & Arrondissement du Sud-Ouest, “Les bâtisseurs de la Petite-Bourgogne” (7 September 2017), online: Mémoire des Montréalais <ville.montreal.qc.ca/memoiresdesmontrealais/les-batisseurs-de-la-petitebourgogne>.

ATTOU MAMAT BCL/JD Candidate at McGill Faculty of Law

See Lam, supra note 3.

See ibid.

9 See Sherene Razack, “Introduction: When Place Becomes Race”, in Sherene Razack, Malinda Smith & Sunera Thobani, eds, Race, Space, and the Law: Unmapping a White Settler Society (Toronto: Between the Lines, 2002) at 12–13. 10 See Bernard Mendelman, “Sharing some personal memories during Black History Month”, The Suburban (5 February 2020), online: <www.thesuburban.com/columnists/bernard_mendelman_write_where_i_belong/bernard-mendelman-sharing-some-personal-memories-during-black-history-month/article_b5bd751e-60d0-5ee8-88699eb224c64584.html>. See also Lam, supra note 3. 11

See Lam, supra note 3.

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Jones.12 In June 2020, a change.org petition was circulated to demand that Lionel-Groulx metro station be renamed after Peterson13—one call, among many, for this history to not be forgotten.

Postal card, Rockhead’s Paradise Cafe Corner St. Antoine and Mountain, 20th century. Source: BAnQ Rosemont-La-Petite-Patrie. CP 6538 CON. Rockhead’s Paradise in 1970. Source: Concordia University Archives, P078-02-01.

See Mendelman, supra note 10.

13 See Naveed Hussain, “Petition pour que la station de metro Lionel-Groulx soit renommée Station Oscar Peterson” (June 2020), online: change.org <www.change.org/p/ville-de-montréal-change-lionel-groulx-metro-stationand-rename-it-oscar-peterson-metro-station>. See also Susan Schwartz, “Petition pushes on to rename métro station in honour of Oscar Peterson”, The Montreal Gazette (1 September 2020), online: <montrealgazette.com/news/petitionpushes-on-to-rename-metro-station-in-honour-of-oscar-peterson>; Sidhartha Banerjee, “Montreal unlikely to rename Metro station after Oscar Peterson, despite petition”, CBC (24 June 2020), online: <www.cbc.ca/news/canada/montreal/oscar-peterson-lionel-groulx-rename-petition-1.5625460>.

One Place in Montreal

LAURA DOYLE-PEAN BCL/JD Candidate at McGill Faculty of Law

co nt o u rs v o l . ix

As I looked up from my phone, I heard the clock striking the hour. I had been looking at and listening to archived images and videos about Little Burgundy and, more specifically, the Union United Church, the first Black congregation in Tiohtià:ke, for most of the afternoon. In one of the videos, the preacher talked of hastiness, of how people were so busy all the time that they could no longer hear the voice of God. I do not know if there is a God (or even multiple gods), but I was still touched by his sermon, and even texted my best friends to talk to them about it. Listening to his preaching, I thought about how capitalism alienates people from their lives, their communities, and themselves by pushing on them the notion that their worth is tied to their productivity. I thought about how certain people, especially Black and racialized folks, have no other choice than to be “always working”, because we live in a world where one has to sell their time away in order to bring food to their kids, and where one is much more likely to not be decently remunerated for their work if their skin is dark and their accent thick. I thought about how working constantly makes it much harder for us to think about our human condition, to organize around it, and to get to know ourselves and our neighbours – which is what I imagine the voices of gods to be about. Heck. For almost a full school year (cut short by the pandemic), I lived 350 meters away from Union United Church (UUC). I passed in front of it every single day while having a little chat with some of my unhoused neighbours before taking the metro to school. Yet, I did not know a single thing about the Church’s history, the important role it played – and continues to play – in the city’s Black community, and the impact it had on the development of Little Burgundy. I was too busy to notice the plaques on the outside of the Church. Had I paid more attention, I would have learned that the Church was founded in 1907 by Black railway porters and their wives, most of whom were members of the Coloured Women’s Club, and were involved in welcoming newcomers and getting them what they needed to survive in the cold city. The Church’s basement was the site of meeting and creation of multiple organizations, including the Negro Community Centre, The Excelsior Debating and Dramatic Club, the Negro Theatre Guild, and the Phyllis Wheatley Art Club. It hosted some of the first concerts of famous jazz musicians such as Oscar Peterson and Oliver Jones. The UUC was and still is a site of community building, caring, and activism. In June 1990, Nelson Mandela, who had just been released from prison, visited the church, to thank its members for their work. In the previous decades, the congregation had been on the front lines of the fight against apartheid in Montreal, calling for the boycott of South African products and raising awareness about apartheid. I first felt guilt about my ignorance of such a major event, one that happened only a few meters from my home. However, that guilt soon turned into anger, then sadness, when I read a blog post on the Church’s website detailing how the event had been buried in the media for 30 years, until the Church, in collaboration with Montreal’s Round Table on Black History Month, decided to commemorate it in 2020 with a huge mural paying tribute to Mandela’s vision and legacy. Before the creation of the mural, only a tiny plaque, somewhere in a distant park far from the neighborhood, had been placed to mark Mandela’s visit to the city. Once again, Black history, as Dr. Cooper puts it, had been “bulldozed and ploughed over.”1 It would be a mistake to think of most people’s lack of knowledge about this church as an isolated occurrence, rather than as part of the systemic erasure of Black history from the national narrative. Many reasons might help explain this erasure, but I especially like the way Dr. Cooper puts it: “Black history has less to do with Black people and more with [w]hite pride.”2 Certainly, the activities of a church some say was created because Black people were excluded from white congregations are not a great source of pride for white people. There is a lot we can learn from the history of UUC. Reflecting on the sermon about busy-ness and the role the Church has played in the advancement of Black people in the city, we can see how coming together as a community is sometimes necessary to break away from the never-ending capitalist marathon, slow down, get some time to think and organize, and have fun while doing so. 1 Afua Cooper, The Hanging of Angélique: The Untold Story of Canadian Slavery and the Burning of Old Montréal (Athens: University of Georgia Press, 2007) at 7. 2

Ibid at 8.

One Place in Montreal

co nt o u rs v o l . ix

“Have you heard of the Computer riot?”, my Black classmate asked one day with a smile while we were sitting on the Henri F. Hall Building’s benches. I shook my head. The Hall building sits on Maisonneuve Boulevard, on Concordia’s University Campus in Montreal. Inaugurated in 1966, it was built to respond to the lack of classrooms.1 As a Concordia student, there were occasions where I felt overlooked and very aware of my blackness but in the Hall building’s classroom, I could always find a friendly face who looked like me. The building has always been both a loud and quiet space, depending on the time and the people who occupy it — so, its racialization. Every day, it is crawling with students from all across the city. However, it has also been the theatre of demonstrations where students have taken to occupying its walls to protest injustice. The Computer Riot was such an incident. The 1960s had seen the arrival of several Black immigrants to Canada who until then had been barred through the 1910 Immigration Act. Many settled in Montreal and studied at Concordia,2 which had a more lenient admissions policy and accepted students from all backgrounds.3 In 1968, six Caribbean students complained to the University that they had received racist treatment from their professor who deliberately gave bad grades to Black students. In 1969, hundreds took over the Computer Centre located in the Hall Buildings.4 The occupation lasted 14 days before a fire was lit by an unknown individual on February 11th.5 As the building burned and policemen beat students, the crowd could be heard chanting “Let the n-word burn.”6 97 were arrested, the leaders imprisoned, and activist Roosevelt Rosie Douglas deported after his sentence.7 The riot revealed how spaces and those who belong there do not evolve naturally and are instead a social product. Perceived space “emerges out of the everyday routine and experiences that install spatial practices.”8 These practices define which bodies are considered respectable and included, and which are deemed out of place.9 While the Hall Building did not bear a sign “White Only,” Concordia’s administration made it clear by its inactions in the face of discrimination that it was not designed for Black people. By physically occupying the ninth floor, Black students sought to reclaim the building and in doing so challenged Canada’s racial hierarchy. The brutal police’s response and the operationalization of criminal law to imprison protesters expose the role of Canadian law in producing and sustaining a racial social order. The message was clear: Black bodies are not welcome in the Great White North. The incident disrupted this country’s national narrative of racial equality10. At the 1 Concordia, “Hall Building”, Concordia University (consulted on 19 February 2021), online: <https://www. concordia.ca/offices/archives/buildings/sgw/hall-building.html>. 2

At the time known as Sir George Williams

3 David Austen, “All Roads Led to Montreal: Black Power, the Caribbean, and the Black Radical Tradition in Canada” (2007) 92 The Journal of African American History at 517. 4 See Concordia, “Computer Center Incident”, Concordia University (consulted on 19 February 2021), online: <https://www.concordia.ca/offices/archives/stories/computer-centre-incident.html>. 5

Ibid (It is still disputed whether the police or the students started the fire).

6 Maude-Emmanuelle Lambeth, “Sir George Williams Affair”, The Canadian Encyclopedia (16 December 2016), online: <https://www.thecanadianencyclopedia.ca/en/article/sir-george-williams-affair>.

ANNE-RAPHAËLLE BOLYA

7 Bill Bownstein, “Festival du nouveau cinéma: Ninth Floor brings us inside the computer lab for the Sir George Williams Affair”, Montreal Gazette (12 July 2020), online: <https://montrealgazette.com/entertainment/movies/ festival-du-nouveau-cinema-ninth-floor-brings-us-inside-the-computer-lab-for-the-sir-george-williams-affair>.

BCL/JD Candidate at McGill Faculty of Law

8 Sherene Razack, “Introduction: When Place Becomes Race” in Sherene Razack, ed, Race, Space, and the Law: Unmapping a White Settler Society (Between the Lines: Toronto, 2002) at 9. 9

Ibid at 10.

10 See Robyn Maynard, “Chapter 2: The Black Side of the Mozaic” in Policing Black Lives: State Violence in Canada from Slavery to the Present (Fernwood Publishing: Winnipeg, 2017) 50.

One Place in Montreal

time, many Canadians who believed that Canada was free from racism were shocked by the events and the police’s response.11 Years later, the Computer Incident’s legacy while not physically seen can still be felt. In the aftermath, black activism moved beyond Concordia as various organizations were created to fight discrimination in Montreal. Generations after generations, Black Concordians have shared with a smile this story of resistance that continues to inspire our struggle to fully belong in this space. “…and you know what? Douglas became Dominica’s Prime Minister” she finished, “but that’s another story”.

Montreal Gazette Files

See Lambeth, supra note 5.

co nt o u rs v o l . ix

One Place in Montreal

co nt o u rs v o l . ix

Monument to Sir John A. Macdonald1 John Macdonald is popularly remembered for his role in confederation and as Canada’s first Prime Minister. What is often forgotten or ignored in this collective retelling, however, are the horrifying policies that he orchestrated while shaping Canada. To clear the path for the Canadian Pacific Railway, John Macdonald ordered a starvation policy to force Indigenous peoples to relocate from their ancestral lands to reserves, where they continued to face drastic food shortages.2 Macdonald also introduced the residential school system, institutionalizing the removal of Indigenous children from their families as well as legitimizing the eradication of “savage” Indigenous cultures.3 These policies clearly demonstrate John Macdonald’s belief that Indigenous peoples are disposable or, to push further, that the existence of Indigenous peoples hinders the building of the Canadian state. John Macdonald has been immortalised by statues erected in several provinces. A Macdonald statue stands at the heart of Montréal in a space called Place du Canada, previously known as Dominion Square. The statue’s location not-so subtly and surely emphasises its centrality in the city’s history. The Macdonald statue, 253 cm tall, is elevated on a pedestal, a positioning that forces any passerby to crane their necks and look up, replicating the relationship of imperial reverence and power between sovereigns and “the people.” The Macdonald statue is at the center of the Place, overlooking a place that was specifically constructed to be his domain. The Macdonald statue is also framed by a structure reminiscent of the Arc de Triomphe, an iconic French symbol of colonialism and empire. Furthermore, the Macdonald statue stands alongside an AngloProtestant cathedral; both monuments represent institutions that played central roles in the genocide of Indigenous peoples. Paula Gunn Allen, Laguna Pueblo poet and novelist, wrote that settler societies’ “amazing loss of memory concerning [their] origins” is rooted in the dispossession and mass killings of Indigenous peoples.4 Similarly, Sherene Razack posits that the myth of “white innocence” in settler societies is, in part, fueled by the assumption that the construction of space and place is apolitical.5 Nowhere near the statue or in Place du Canada do we find an acknowledgement of the violence that John Macdonald has legitimized and perpetrated against Indigenous communities. The Canadian state’s inaction vis-à-vis calls to take down the Macdonald statue or include a plaque that recognises the darker side of John Macdonald’s legacy is contrary to the spirit of reconciliation reaffirmed by Canadian leaders and in the Supreme Court.6 Commemorative spaces, by nature, depict a particular version of history while disappearing others. We must question why these spaces were created, what histories they simultaneously revive and silence, by digging up the truths that these spaces (actively) bury.7

Trigger warning: “s” slur, genocide, violent settler policies against Indigenous peoples including residential schools and starvation

1 In discussing the John Macdonald statue, I acknowledge my positionality as an immigrant and a settler who came to the land that her legal documents call “Canada” for her post-secondary education, which includes the study of two (Western) legal systems that have histories/legacies of slavery and the ongoing processes/structures of colonialism. 2 See James Daschuk, Clearing the Plains: Disease, Politics of Starvation, and the Loss of Aboriginal Life (Regina: University of Regina Press, 2013). 3 See e.g. Tanya Talaga, Seven Fallen Feathers: Racism, Death, and Hard Truth in a Northern City (Toronto: House of Anansi Press, 2017) at 60.

SEJEONG PARK BCL/JD Candidate at McGill Faculty of Law

4 Paula G Allen, “Who Is Your Mother? Red Roots of White Feminism” in The Sacred Hoop (Boston, MA: Beacon Press, 1986) 192. 5 Sherene Razack, “When Place Becomes Race” in Sherene Razack, ed, Race, Space and the Law: Unmapping a White Settler Society (Toronto: Between the Lines, 2000) 1. 6 See e.g. Justin Trudeau, “Prime Minister Trudeau’s message on National Indigenous Peoples Day”, Prime Minister of Canada (21 June 2020), online: <https://pm.gc.ca/en/videos/2020/06/21/prime-minister-trudeaus-message-national-indigenous-peoples-day>. See also Tsilhqot’in Nation v British Columbia, 2014 SCC 44. 7 See e.g. Jennifer J Nelson, “The Space of Africville: Creating, Regulating, and Remembering the Urban Slum” in Sherene Razack, ed, Between the Lines (Toronto: Between the Lines, 2000) 211 at 211.

One Place in Montreal

Work Cited JURISPRUDENCE Tsilhqot’in Nation v British Columbia, 2014 SCC 44. SECONDARY SOURCES: MONOGRAPHS Allen, Paula G, “Who Is Your Mother? Red Roots of White Feminism” in The Sacred Hoop (Boston, MA: Beacon Press, 1986) 192. Daschuk, James, Clearing the Plains: Disease, Politics of Starvation, and the Loss of Aboriginal Life (Regina, SK: University of Regina Press, 2013). Nelson, Jennifer J, “The Space of Africville: Creating, Regulating, and Remembering the Urban Slum” in Razack, Sherene, ed, Between the Lines (Between the Lines: 2000) 211. Razack, Sherene, “When Place Becomes Race” in Razack, Sherene, ed, Race, Space and the Law: Unmapping a White Settler Society (Between the Lines, 2000) 1. Talaga, Tanya, Seven Fallen Feathers: Racism, Death, and Hard Truth in a Northern City (Toronto, ON: House of Anansi Press, 2017). ELECTRONIC SOURCES Trudeau, Justin, “Prime Minister Trudeau’s message on National Indigenous Peoples Day” (21 June 2020), online: Prime Minister of Canada < https://pm.gc. ca/en/videos/2020/06/21/prime-minister-trudeausmessage-national-indigenous-peoples-day>.

co nt o u rs v o l . ix

One Place in Montreal

The Story They Do Not Tell: Race, Space and the

co nt o u rs v o l . ix

There is an unnamed Haudenosaunee (Iroquois) man. He is crouching in Place d'Armes facing the North West. He sits at the base of a monument below Paul Chomedey, the Sieur of Maisonneuve and one of the "founders" of Ville Marie (which later became Montreal).1 Who is this Haudenosaunee? How did he get here so far away from home? It seems that this man has a story to tell. How can this monument, which shows him frozen in bronze, really tell his story? Is the monument built to tell his story? The Maisonneuve monument is in Old Montreal opposite another historic site, the Notre Dame Basilica. This bronze monument, complete with a fountain, is so large that some complain that it is impossible to take Notre Dame's picture without seeing the monument in the background.2 The official story is that the monument celebrates Paul Chomedey and his importance to Montreal's history. The monument itself immortalizes him in bronze as a well-dressed man in high boots with one hand on the French flag and the other hand on the pommel of his sword. This depiction of Chomedey is similar to the depiction of other settlers who are shown as brave men adventuring into the New World and creating their identities in these faraway places.3 This statue purposefully omits Chomedey's violent acts, including killing a Haudenosaunee chief during a nearby village raid.4 This violent dispossession is how a Haudenosaunee man enters the imagination of a European settler society. Chomedey stands tall and towers over us as we walk through the square. How does an Indigenous person, particularly a Haudenosaunee person feel walking through this square? They bring their trauma and pain to this monument. The image of the white settler is something that they cannot escape. The statute communicates that they are not part of the imagined community that this statue was built for.5 Instead, the Haudenosaunee are the vanquished group. This narrative of vanquished individuals is reinforced by the continued dispossession of Indigenous people in reserves and the continued struggle with colonial settler violence in different government structures.6 In this monument, the Haudenosaunee man is merely a shadow, almost a prop sitting at the monument's base.7 He is a man frozen in time and seems not to fit into the present. The Indigenous body, through this statue, is created as something that is out of place in the present. The Indigenous body is to be forgotten. Although the city legally owns the monument itself, community members see it as a public good. However, Haudenosaunee people do not fit into this community, so they have no ownership rights to this statute. The law protects this monument from vandalism or from being defaced. It does not protect the Haudenosaunee who are hurt and want the monument taken down. I wonder what this Haudenosaunee man would have to say to an indigenous person in the square. I am sure he has something to say. This monument’s sculptor kept him unnamed to signify that his story was not important to the history of Montreal. To the sculptor, he is not the protagonist of the story of the settler. But, this Haudenosaunee man has an important story to tell about Montreal’s history and the original peoples of this land. However, you must be listening (and looking) closely to hear it. 1 See Louis-Philippe Hébert, “Monument À Paul De Chomedey, Sieur De Maisonneuve” (consulted 9 March 2021), online: Art Public — Ville de Montreal <https://artpublic.ville.montreal.qc.ca/en/oeuvre/monument-apaul-de-chomedey-sieur-de-maisonneuve/>. 2 See Michael K, (October 2019), online: TripAdvisor <https://www.tripadvisor.com/ShowUserReviews-g1 55032-d15329605-r720815046-Maisonneuve_Monument-Montreal_Quebec.html>. This opinion is taken from an Expedia review by user Michael k that described that the monument was a blessing at a curse because it could be seen in all photos of the Notre Dame. 3 See Sherene Razack, ed, Race, Space, and the Law: Unmapping a White Settler Society (Toronto: Between the Lines, 2002) at 13—15 4 See Matthew Gagnon Blair, “A Guide to Problematic Monuments” (21 September 2020), online: Maisonneuve <https://maisonneuve.org/post/2020/09/21/guide-problematic-monuments-montreal/>.

SHONA MUSIMBE BCL/JD Candidate at McGill Faculty of Law

5 See Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism, (London: Verso Books, 2006). 6 See Truth and Reconciliation Commission of Canada, “Honouring the Truth, Reconciling for the Future Summary of the Final Report of the Truth and Reconciliation Commission of Canada” (2015), online: National Centre for Truth and Reconciliation <http://nctr.ca/assets/reports/Final%20Reports/Executive_Summary_English_Web.pdf>. 7 See Truth and Reconciliation Commission of Canada, “Honouring the Truth, Reconciling for the Future Summary of the Final Report of the Truth and Reconciliation Commission of Canada” (2015), online: National Centre for Truth and Reconciliation <http://nctr.ca/assets/reports/Final%20Reports/Executive_Summary_English_Web.pdf>.

One Place in Montreal

co nt o u rs v o l . ix

Spaces and laws share a strange characteristic: they can be rebuilt, concealing their previous imperfections under the veneer of the new. Montreal Forum wants to be one such place. First built in 1924, the Forum has undergone several major renovations over the decades. Once a splendid indoor hockey arena, now reimagined into a multiplex cinema and mall. At its core, the Forum remained loyal to delivering mass entertainment to Montrealers, which facilitated a discreet re-delineation of the spatial and symbolic sense of membership, articulated sometimes through socio-cultural, sometimes through economic, terms. Initially, the site racialized physical access to leisure by filling up space with White bodies and internalizing this order as the only available. The collective “everyone” was White. The sense of unity over the national winter sport has likewise been built, with majestic arenas, generations of sweaty bodies of players, boos, cheers, a smell of beer, family memories, and laws,1 all intermingled. Fred Christie was a hockey fan himself. Originally (sic?) from Jamaica, Mr. Christie resided in Quebec for 20 years (I wonder why that is relevant in the Christie judgement?) before visiting a bar at the Forum in 1936. He went in to get a glass of beer, but his request was denied. Mr. Christie sued the hateful bar policy and lost his case at the Supreme Court of Canada on the grounds of freedom of commerce.2 Quite naturally, it was argued, the merchants had the right to delineate the scope of service they would like to deliver, including along racial lines, because the law did not explicitly forbid it. The power to regulate access to/exclusion from services was formally erased from Quebec with the province’s Charter of Human Rights and Freedoms in 1975. The Said3

The Implied (as I see it)

“The appellant who is negro entered tavern […] and asked to be served glass of beer but the waiters refused him for the sole reason that they had been instructed not to serve coloured persons.”

Mr. Christie’s Black body was unwelcomed in the space of leisure. His presence was disruptive that is Mr. Christie’s body lacked the intermingling capacity with (the right kind of) sweat, boos, cheers, beer smell. Relaxing is a White people’s privilege.

“[…] [I]n refusing to sell beer, […] employees did so quietly, politely and without causing any scene or commotion whatever.”

White bodies in space are enforcers of the legitimate social order. They act with manners; they are civilized. Thus, their politeness can never be oppressive.

“If any notice was attracted […] it arose out of the fact that the appellant persisted in demanding beer after he had been so refused and went to the length of calling the police, which was entirely unwarranted by the circumstances.”

Black bodies are everything that White bodies aren’t. They are angry and InaPproPriAte.

LOUD

Now, as an entertainment centre, the Forum draws from hockey history to project it as a shared history. Mr. Christie is not part of that story. Meanwhile, the reconstructed ice rink at the centre of the mall, original seats serving as benches, references to Montreal Canadiens flags elevate the shopping experience, reminding the visitors that they belong.

NATALIA KOPER BCL/JD ‘21, McGill Faculty of Law

See National Sports of Canada Act SC 1994, c 16, s 2.

See Christie v The York Corporation, 1939 CanLII 39 (SCC), [1940] SCR 139 at 142.

All quotes in ibidem at 141.

One Place in Montreal

co nt o u rs v o l . ix

In 1987, at the age of twenty, my mother fled the aftermath of the Vietnam war and began her life in Montreal in a 5 ½ apartment in Norgate in the Saint-Laurent borough. She lived in a distant family member’s cramped apartment and shared a small bedroom with her parents and younger brother. Her family later moved into a unit on the floor below which eventually accommodated three of her older siblings as well. My mother describes the living conditions in Norgate as worse than what she experienced in her own country – poor insulation, lack of heating systems, decaying rats between the walls, flooding, cockroaches, mold, and so on. The squalid and overcrowded living space left much to be desired. They found better living conditions when they finally moved out to an abandoned and dilapidated house a block away. Norgate was developed in 1956 and is surrounded by Côte-Vertu to the south, Poirier to the north, Grenet to the east, and Ouimet to the west.1 The area is 65 percent walk-up apartment buildings that stretch as far as the eye can see.2 In the late 70s, the area’s 5 ½ and 7 ½ apartments - capable of accommodating large families - attracted an influx of “boat people”.3 At that time, a quarter of the buildings were labelled as unsanitary and in need of renovations.4 Norgate thus became known as a poor, multiethnic, and family-oriented neighbourhood.

KIM-LAN DAN BCL/JD Candidate at McGill Faculty of Law

1 See Philippe T Desmarais, “Logements insalubres en contexte pluriethnique : étude de cas et pistes d’intervention pour le quartier Norgate dans l’arrondissement Saint-Laurent à Montréal” (LL.M. Thesis, Université de Montréal Faculty of Law, 2016) [unpublished] at 82. 2

Ibid at 86.

Ibid at 83.

Ibid.

One Place in Montreal

co nt o u rs v o l . ix

In 2003, I arrived in Montreal and lived in the same deteriorating house that my mother lived in ten years prior. By then, a rise in conflicts across the Global South meant that Norgate’s immigrant population grew to include displaced Haitians, Moroccans, Cambodians, and Columbians, among others. It remained a familyoriented neighbourhood with 74 percent families, 22 percent of which were singleparent households.5 The area was still poor; the median household after-tax income was $29,316 and 35.1 percent of residents were low-income.6 The students at the local public elementary schools were ranked among the most underprivileged in Montreal and still are today.7 By 2012, 45 percent of the buildings in Norgate needed renovations.8 No studies have been conducted since then, but by the external appearance of the buildings, conditions have not improved and the population remains largely poor and immigrant.9 The community in Norgate is far from what Canada likes to showcase when talking about multiculturalism. The number of immigrants and refugees that Canada welcomes into its racially tolerant sanctuary is celebrated while the reality of their living and labour conditions is forgotten. They are left to be exploited by predatory rental companies and forced into low-paid jobs with little job security. Let’s not forget that many of the conflicts that caused mass exoduses were due to Canada’s participation in neoliberalism and neocolonialism.10 Canada has deemed Norgate’s inhabitants expendable and left them to fend for themselves in a cycle of poverty. Multiculturalism has been successful as a publicity campaign but failed in creating substantial policies, pushing at least two generations into the margins of society.11

2018 Poverty Map

of Families with Children Under the Age of 18

of the Comité de gestion de la taxe scolaire de l’île de Montréal Rivièredes-Prairies

Pointeaux-Trembles

PointeFortune

Ott aw aR ive r

Rigaud

Montréal-Est Oka

See Desmarais, supra note 1 at 86.

9 See Montréal, Arrondissement de Saint-Laurent, “Atlas sociodémographique”, Recensement de 2016 : arrondissement de Saint-Laurent (September 2018). 10 See Robyn Maynard, “The Black Side of the Mosaic,” in Policing Black Lives: State Violence in Canada from Slavery to the Present (Blackpoint, NS: Fernwood Publishing, 2017) 50. 11

Ibid

VaudreuilDorion

Sainte-Marthe

MercierEst

MontréalNord

Terrasse- L'ÎleVaudreuil Perrot

Saint-Léonard

Laval

MercierOuest

Pincourt Notre-Damede-l'Île-Perrot

Sainte-Justinede-Newton

Saint-Clet

Saint-Michel

Les Cèdres

a ir

Rosemont Ahuntsic Villeray

Salaberryde-Valleyfield

Cartierville

ParcExtension

er Riv

5 km

Roxboro

SainteGeneviève

Lake of Two Mountains

DollardDes Ormeaux

Senneville

Pierrefonds

Pointe-Claire Kirkland

Vaudreuil-Soulanges RCM

Dorval / L'Île-Dorval Lachine

Sainte-Annede-Bellevue

Beaconsfield

Notre-Damede-Grâce

MontréalOuest SaintPierre

CôteSaintPaul

VilleÉmard

LaSalle

Baie-D'Urfé

Sources: Retraite Québec, Child Assistance Program; Statistics Canada, 2016 Census and 2016 National Household Survey.

Snowdon Westmount PetiteBourgogne PointeSaintSaintCharles Henri

Hampstead

Verdun

Île des Sœurs

Minimal presence Weak presence Moderate presence Strong presence Moderate concentration High concentration Few or no family

Longueuil Ville-Marie

Côtedes-Neiges

CôteSaint-Luc

Level of Underprivilege

Plateau Mont-Royal CentreSud Outremont

MontRoyal

Pierrefonds Saint-Laurent

L'Île-Bizard

Vaudreuil-Soulanges RCM

HochelagaMaisonneuve PetitePatrie

River

en wr La int Sa

re nce

RivièreBeaudette

e des èr

SaintZotique

ONTARIO

Les Coteaux

SaintTélesphore

ies

Pointe-desCascades Coteaudu-Lac

SaintPolycarpe

Ibid at 14.

7 The overall underprivilege index is calculated yearly and is composed of four variables: family income, mother’s education, female lone-parent families, and parents’ economic activity. Schools are classified in decreasing order of their underprivileged index. The local schools are Bois-Franc-Aquarelle (which has two buildings that are ranked separately) and Enfant-Soleil. In 2008, out of 344 public elementary schools in Montreal, Bois-Franc-Aquarelle was ranked 42nd and 53rd while Enfant-Soleil was 61st. In 2020, Bois-Franc-Aquarelle was ranked 46th and 50th while Enfant-Soleil was 26th. See also Bilan, supra note 5 at 63; Montréal, Comité de gestion de la taxe scolaire, Classification des écoles primaires et Classification des écoles secondaires selon leur indice de défavorisation — Inscriptions au 6 novembre 2020 (February 2021).

Island of Montréal

L'ÎleCadieux Vaudreuilsur-le-Lac

Saint-Lazare

VaudreuilDorion

Très-SaintRédempteur

Anjou

Lake of Two Mountains

Hudson

5 Ibid at 86. See also Montréal, Arrondissement de Saint-Laurent, Direction de la culture, des sports, des loisirs et du développement social, “Sommaire”, Bilan de situation en développement social (October 2013), online: Bibliothèque et Archives nationales du Québec <https://numerique.banq.qc.ca/patrimoine/details/52327/2465324?docref=xQoYk-bLIfV6T_5-n8rQmQ> at 14 [Bilan].

5 km

Lake Saint-Louis

One Place in Montreal

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The Lachine Canal is a bustling landmark that stretches along southwestern Montreal. At any given time, the Canal will be packed with Montrealers and their dogs. For myself the Canal has been a refuge throughout the pandemic, providing small opportunities for connectivity between smiling strangers. Although I have walked the Canal many times, I have rarely considered its genesis beyond noting that the landmark has been deemed ‘historic’ for its contribution to the industrialization of Montreal. Yet, as a fixture of white settler society, the creation of the Canal is part of a history of oppression, and as a white person who frequently uses this space, I believe it is my obligation to understand this history and share a bit of it with our readers. Prior to the colonization of North America by Europeans, the land that the Canal now occupies was inhabited for many millennia by Indigenous peoples. The initial theft of the land that the Canal is situated upon does not mark the end of its racialized history. Construction on the Canal began in 1821, and by 1825 it was in use, although construction continued for several decades. When reading about the Canal’s construction, two narratives take center stage: the impoverished Irish immigrants who made up the work force, and the tensions within the workforce that cumulated into the most violent labour conflict in Canada.1 This tragic conflict involved a worker’s strike where the infantry was called in and nearly 20 workers died. Missing from these narratives, however, is an account of the small population of Black workers who contributed to the erection of the Canal. The work on the Canal was brutal, with labourers working more than 15 hours a day. Yet, despite the hardships faced by these Black workers, and the contribution they made to the economic growth of Montreal, their existence takes up no more than a line in the historical narrative.2 All we know is that Black workers helped build the Canal, but no further information is available. The story of the Lachine Canal has been molded into a story of white labour, suffering, and triumph, when the truth is far from that. As Sherene Razack explains, Canada has been spatially organized to sustain a racial hierarchy through the dissemination of white settler mythologies. These mythologies promote the idea that Europeans have unquestioned entitlements to the land that became Canada. But this was not ‘empty land’ - this land was stolen through the power of whiteness, a power informed by the belief that white people have the right to possess whatever the non-white have, by any means.3 The Lachine Canal is part of this story. Whiteness permitted the dispossession of the land in which the Canal is situated from Indigenous peoples, and whiteness enabled the construction of the canal through the labour of non-whites, who were barely paid and brutally overworked. The colonization of the Island of Montreal was violent, and as land passes through different hands and changes, we cannot forget that this land was initially acquired through loss and death.

HANNAH YOUNG BCL/JD ‘21, McGill Faculty of Law

1 See Francis Desaulniers, “Lachine Canal” (4 April 2016), online: The Canadian Encyclopedia <https:// www.thecanadianencyclopedia.ca/en/article/le-canal-de-lachine>. 2 See Dorothy Williams, “Little Burgundy and Montreal’s Black English-Speaking Community”, The Canadian Encyclopedia (10 February 2020), online: <https://www.thecanadianencyclopedia.ca/en/article/little-burgundy-and-montreal-s-black-english-speaking-community>. 3 See Sherne Razack, “When Race Becomes Place,” in Sherene Razack, ed, Race, Space and the Law: Unmapping a White Settler Society (Between the Lines, 2000) at 3.

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guard spaces for whites only, using the law to expel interlopers, those who would dare to buy a drink at a tavern where whites drink, and who would sully our precious memories of a place that is for whites alone (Koper).

Trespassing By: Sherene H. Razack Distinguished Professor and Penny Kanner Endowed Chair, Gender Studies, University of California at Los Angeles

Reading these eight reflections on spaces in Montreal reminds me of what I felt that day when I was challenged about teaching about the connections between race, space and the law. I was made to feel that I was trespassing on property that did not belong to me, destroying precious memories of a heroic race. What the authors of these vignettes do is to insist on trespassing. If whiteness is property2, trespassing is the only path through to an anti-colonial and anti-racist future.

A long time ago, well before I put together the brilliant articles of former students of the graduate course “Race, Space and the Law” into the anthology Race, Space and the Law: Unmapping a White Settler Society,1 I was called upon by the School of Graduate Studies of the University of Toronto to defend my proposal to teach the course. It seemed that I was trespassing on the terrain (again quite literally) of bona fide geographers who had objected to my teaching the course. I was asked to explain why I, a non-geographer, felt qualified to teach such a course, my doctorate in the history of education and relevant publications notwithstanding. If the official story was one about disciplines, the actual encounter felt deeply racist. The eight vignettes from McGill’s School of Law that are published here brought back the emotions of that day and all the things I wanted to say back then and could not. They offer an eloquent counter story I could have used to state my case. The nine vignettes are each concerned with what lies beneath the layers – of soil, of memory, of boasts of Canada’s multicultural and benevolent character. What you see is not what you get, the writers of these pieces remind us. Or rather, what you see emerges from what lies beneath. Maison d’Haiti stands over layers of exclusion and suffering of Black Montrealers (Hülya Miclisse-Polat); Little Burgundy’s Jazz great Oscar Peterson comes out of these histories and the toil of African Caribbean and African American immigrants (Mamat) whose church was an enduring island of resistance to racism. The church was so important a site of resistance to Apartheid in South Africa that Nelson Mandela felt compelled to visit it upon his visit to Montreal, a visit unremarked upon by the press of the day (Doyle Péan). Counter stories are suppressed and buildings and statues cover over with concrete any hint of a less than idyllic past. The Hall at Concordia (then Sir George Williams University, the nomenclature yet another commemoration to a colonizer) was the site of a daring Black protest against racist professors (Raphaëlle Bolya). Dozens of statues of white men dot the landscape, celebrated figures such as Sir John A Macdonald (Park) and Paul Chomedey, the Sieur of Maisonneuve and one of the "founders" of Ville Marie (Musimbe), white men who are depicted sometimes along with their very own Indigenous figure. As Musimbe wonders of the Haudenosaunee man at the foot of the statue of Chomedey, what would he have to say to an Indigenous person in the square. I am sure he has something to say, she observes, but warns that we would have to be listening to hear it. The writers of these vignettes implore us to listen, to dig beneath the layers, to find the stories we would like to stay buried. The will to forget is a strong one. We may change the name of a park to an Indigenous one we can’t pronounce or spell but leave the gesture of inclusion empty of responsibility. With unrelenting dedication, we continue to tell stories of triumphant white settlers, casting all others to the past or to the outside. We protest the tearing down of statues and insist that Indigenous people have mostly all disappeared. We jealously 1 See Sherene Razack, ed, Race, Space and the Law: Unmapping a White Settler Society (Toronto: Between the Lines, 2004).

See Cheryl I Harris, “Whiteness as Property” (1993) 106:8 Harv L Rev 106, no.8 at 1710—91.

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Introduction Embracing prison abolition is a critical part of a feminist approach to practicing law. In failing to name and discuss prison abolition, our first-year Criminal Justice syllabus falls short of providing students with an understanding of transformative justice and largely reflects a carceral feminist understanding of justice. Incorporating anti-carceral feminism in our teaching and discussions of crime and sexual assault can help us better understand why prison abolition is the safest and kindest way toward accountability and harm reduction.

What is Prison Abolition? Prison abolition is a movement that sees prisons as exacerbating social harms rather than addressing them. In contrast to reforms that tweak how criminal justice is practiced, abolition presents a broader paradigm shift to the system. Critical Resistance, an international activist organization founded in 1997 by Angela Davis, Ruth Wilson Gilmore, and others, defines prison abolition as “a political vision with the goal of eliminating imprisonment, policing, and surveillance and creating lasting alternatives to punishment and imprisonment.”1 They maintain that prison abolition “isn’t just about getting rid of buildings full of cages. It’s also about undoing the society we live in because the Prison Industrial Complex both feeds on and maintains oppression and inequalities through punishment, violence, and controls millions of people.”2

Carceral Feminism & Criminal Jusrice at McGill Law

If you are new to prison abolition, the idea of getting rid of prisons can feel farfetched. Indeed, most of us have been brought up to not question the existence of prisons and have taken for granted that they are necessary in our society. Davis notes that “abolitionists are dismissed as utopians and idealists whose ideas are at best unrealistic and impracticable, and, at worst, mystifying and foolish.”3 However, she is quick to point out that abolition is not simply “a negative process of tearing down, but it is also about building up, about creating new institutions.”4

How Does Abolition Fit Within the Feminist Struggle? Skeptics of prison abolition are often quick to ask: ‘what about the rapists?’ Indeed, harm and violence are realities that will not disappear overnight alongside prisons. To this end, people initially see prison abolition as being incompatible with efforts to end violence against women and other victims of sexual violence. However, rather than being incompatible with the fight against all forms of violence, the abolitionist movement is the key to addressing these issues. Unlike carceral feminists, who “rely on increased punitive state power in the fight to end violence against women,” anti-carceral feminists “centre non-punitive, transformative community-based responses rooted in care, such as investing in lifeaffirming social services.”5 The idea of putting perpetrators behind bars is “based on the false assumption that the threat of punishment will stop violence from occurring.”6 Anti-carceral feminists also recognize that prisons do not address sexual violence; in fact, they are sites of sexual violence themselves. Accordingly, abolition offers a transformative justice approach that centres the healing of the survivor, rather than the punitive justice of the carceral system. In Prison by Any Other Name, Schenwar and Law write “since prison does not solve 1 “What is the PIC? What is Abolition?” (consulted 17 August 2021), online: Critical Resistance <http://criticalresistance.org/about/not-so-common-language/> [Critical Resistance Definitions].

ZOË CHRISTMAS & JULIANNA DUHOLKE BCL/JD ‘21, McGill Faculty of Law & BCL/JD Candidate at McGill Faculty of Law

Ibid.

Angela Y Davis, Are Prisons Obsolete? (New York: Seven Stories Press, 2003) at 10.

4 2005) at 73.

Angela Y Davis, Abolition Democracy: Beyond Empire, Prisons, and Torture (New York: Seven Stories Press,

5 See Marlihan Lopez, “Prison Abolition is a Feminist Struggle” (23 November 2020), online: CBC <www. cbc.ca/news/ canada/montreal/prison-abolition-defund-the-police-violence-against-women-feminism-1.5809912>. 6

Ibid.

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sexual violence and in fact promotes sexual violence, that question can be turned on its head. [...] What are we doing to actually address rape and sexual assault?”7 Feminist activist Marlihan Lopez agrees: in sharing her experience surviving intimate partner violence, she has learned that the police and the punitive and carceral systems of our society neither protect women nor bring an end to violence.8 Instead, the abolitionist movement seeks to address the root causes of harm in order to prevent it.

first place, such as misogyny and class. Anti-carceral feminism challenges these issues on a deeper level—recognizing that the well-intentioned reforms touted by certain feminists have reinforced the violence of our established carceral frameworks.

What Forms of Justice Follow from an Abolitionist Framework? Restorative justice is defined as “an approach focused on repairing harm when wrongdoing or injustice occurs in a community.”9 It is often seen as the alternative to our criminal justice system. But restorative justice and retributive justice are not opposites: both rely on the same logic that the victim who was harmed is owed something by the perpetrator. In the case of retributive justice, the offender owes suffering in proportion to the offence. In the case of restorative justice, they owe healing. Transformative justice, on the other hand, “is a political framework and approach for responding to violence, harm and abuse. At its most basic, it seeks to respond to violence without creating more violence and/or engaging in harm reduction to lessen the violence.”10 Restorative and transformative justice are related (and both offer important insights for addressing harm), but transformative justice recognizes that the person who caused the harm also has needs and wants that should be addressed. Transformative justice recognizes that it is often ‘hurt people who hurt people’ and that we all have the ability to both cause harm and be harmed. Transformative justice completely rejects the criminal system and focuses on transforming the conditions that led to the harm in the first place.

How and Why Does the Criminal Justice Syllabus Fall Short? We want to begin by saying how much we appreciate the critical lens our first-year Criminal Justice class takes the Canadian justice system. Our readings often pointed to the legacy and ongoing impacts of colonialism in Canada, and offered critiques on the liberal assumptions that underpin our criminal legal systems. When it came to learning about sexual violence and criminal law, we were taught the problematic history of rape law, which is based on the notion of women as property. We also learned about how sexual assault provisions perpetuate myths and stereotypes of women, and the role of a victim’s sexual history as evidence in a criminal trial. We looked at a few alternatives as well, and several of our readings advocated for or explored restorative justice models for addressing sexual violence. In studying the ins and outs of a criminal trial for sexual assault, we spent a class studying the Ghomeshi case, and looked at how eliminating ‘whacking the complainant’11 has been a struggle in sexual assault trials in Canada. This analysis upholds the notion that if we could just make sexual assault trials better, then we would see justice. If we could just make sure lawyers asked the right questions in the right way at the right time, then the system would work. This is effectively a carceral-feminist approach to the law, relying on prosecution and imprisonment as appropriate responses to gendered or sexual violence.

After reading Ghomeshi, our class began to understand how the current criminal trial process can be antithetical to a sense of justice. We then considered some alternatives: in a CBC article, Laura Wright discussed how “it’s critical for people to have options other than the court system”, such as community-supported accountability processes.12 In another piece, Angela Cameron critiques restorative justice, noting how it can fail to address the underlying causes. Cameron argues that removing intimate violence from the realm of public courts effectively undoes all the work that brought these issues to the forefront in the first place.13 These critiques are important, but the idea that the carceral system should be dismantled altogether was never discussed. Restorative justice is offered as an ‘alternative pathway’ that could exist alongside prisons, as opposed to being central to a reimagining of society. Indeed, our readings failed to consider the radically transformative alternative offered by abolition.

How McGill Law’s Criminal Justice Course Can Do Better By failing to name abolition, our Criminal Justice class fails to ask us to think critically about the role of incarceration in our criminal justice system. In fact, we hardly – if ever – discussed the harsh reality of prison. Instead, we were given an extensive look at the form and presence of criminal law in our society without considering the end result for the people touched by the criminal justice system. We did not hear from formerly incarcerated people, nor did we read about life on the inside of prison walls. Introducing abolition into our studies of the criminal justice system would allow students to better understand the theoretical underpinnings of criminal law and to build a more conscientious critical approach to examining our criminal justice institutions. We offer these critiques not only because we believe in prison abolition, but because we believe that McGill Law’s Criminal Justice syllabus is ready to embrace it. Our first-year syllabus was well-structured, thoughtful, and included many important pieces that not only asked us to think critically about how our justice system operates, but also to consider the meaning of justice in the first place. Our professors did not shy away from difficult discussions about the racism, misogyny, and colonialism embedded in our institutions. However, presenting abolition as a tool to address these issues could help us become more perceptive and creative as students and future jurists. It is time to take the leap and add it to the syllabus. A handful of law faculties have already done this: Yale Law School offers “Prison Abolition” and Columbia Law School teaches “Abolition: A Social Justice Practicum”.14 These courses explore not only the abolition of some parts of the American criminal justice system, such as the death penalty, but also consider the abolition of punishment more broadly. In Canada, UBC’s Allard School of Law offers “Penal Policy,” a prison law course taught from an abolitionist framework.15 Similarly “Imprisonment and Prison Policy” at the Schulich School of Law and “Legal Values: Prison Law, Policy, and

But even if the survivors in Ghomeshi had been believed, Ghomeshi receiving a jail sentence would not have addressed the systems that allowed the violence to occur in the 7 Maya Schenwar and Victoria Law, Prison by Any Other Name: The Harmful Consequences of Prison Reform, (New York: The New Press, 2020) at 218. 8

See Lopez, supra note 5.

9 See “What is Restorative Justice” (consulted 17 August 2021), online: Alberta Restorative Justice Association <https://www.arja.ca/what-is-restorative-justice>.

12 Laura Wright, “Sexual Assault Trials: Experts Call for Alternatives to Canada’s Current Court System” (last modified 20 February 2016), online: CBC <https://www.cbc.ca/news/canada/alternatives-to-sexual-assault-trials-1.3451140>. 13 Angela Cameron, “Stopping the Violence: Canadian Feminist Debates on Restorative Justice and Intimate Violence” (2006) 10:1 Theoretical Criminology 49.

10 See Mia Mingus, “Transformative Justice: A Brief Description” (consulted 17 August 2021), online: Transform Harm <https://transformharm.org/transformative-justice-a-brief-description/>.

14 See “Prison Abolition” (last modified in 2020; consulted on 17 August 2020), online: Yale Law School Courses <https://courses.law.yale.edu/courses/course/2946>; “Abolition: A Social Justice Practicum” (last modified in 2019; consulted on 17 August 2021), online: Columbia Law School <www.law.columbia.edu/academics/courses/26127>.

11 ‘Whacking the complainant’ refers to a defence strategy used in sexual assault trials that involves prolonged and humiliating cross-examinations that effectively put the victim on trial. See David M Tanovich, “Whack No More: Infusing Equality Into the Ethics of Defence Lawyering in Sexual Assault Cases” (2013) 45 Ottawa L Rev 495.

15 See “LAW 401D Penal Policy - PENAL POLICY” (last modified in 2020; consulted on 17 August 2021), online: The University of British Columbia <https://courses.students.ubc.ca/cs/courseschedule?pname=subjarea&tname=subj-course&dept=LAW&course=401D>

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Reform” at Osgoode Hall both teach students about prison law and abolition.16 With the groundwork already laid, McGill should not hesitate to embrace this content.

Conclusion Abolition is not a recent movement: it has been around since the advent of prisons as the primary mode of punishment.17 It gained popularity in the ‘90s through the hard work of Angela Davis, Ruth Wilson Gilmore, and other (mostly Black, female) activists. It has since become ever-present in public discourse since the 2020 protests against police brutality and systemic anti-Black racism. Given that abolition is both a conceptual framework for policy theory and a practical tool for activist organization,18 it fits in well with McGill Law’s pluralistic approach to teaching law. Our first-year Criminal Justice syllabus attempts to take a critical perspective to the very logic of our carceral system. This critical look is incomplete without abolitionist perspectives. Prison abolition should not be dismissed as a fringe movement based on impractical ideals. It is a sophisticated analytical tool that is indispensable to the critical approach to law the McGill purports to offer. It is also a part of the feminist struggle, and we invite our Faculty, fellow students, and professors to join in.

v o l u m e ix Podcasts • Piché, Justin, et al, “If we abolish prisons, what’s next?” (2019), online: CBC Ideas <www.cbc.ca/radio/ideas/if-we-abolish-prisons-what-snext-1.5399845>. •

Schenwar, Maya, “How to Abolish Prison like a Feminist” (2020), online: Unladylike <unladylike.co/episodes/094/abolish-prison-like-afeminist>. Convinced but not sure what to do next?

We get it—being an abolitionist can feel overwhelming. After all, we are not going to abolish prisons tomorrow. (But hopefully in our lifetime! We have to dream big!) As law students, we can join abolitionist social movements, and as future jurists we can initiate legislative or policy reforms that support abolition. Something we often struggle with is knowing what reforms to support and what reforms to advocate against. Some activists call the changes that will simply further entrench the carceral state “reformist reforms”, whereas “non-reformative reforms” represent steps towards abolition. Here are some important questions to ask when considering supporting a reform:19 •

Does it reduce funding to police and/or prisons?

Abolition Checklist

•

Does it challenge the notion that police and/or prisons increase safety?

Intrigued but not convinced? Or just want to learn more? Here is some recommended reading:

•

Does it reduce the tools/tactics/technology that Corrections has at their disposal?

•

Does it reduce the scale of police and/or prisons?

Articles • Duffy Rice, Josie & Mariame Kaba, “Uncaging Humanity: Rethinking Accountability in the Age of Abolition” (2020), online: BitchMedia <www.bitchmedia.org/article/mariame-kaba-josie-duffy-rice-rethinkingaccountability-abolition>. •

Hart, Benji, “You Are Already an Abolitionist” (2017), online: Radical Faggot <radfag.com/2017/03/24/you-are-already-an-abolitionist/>.

•

Hayes, Kelly & Mariame Kaba, “The Sentencing of Larry Nasser was Not Transformative Justice” (2018), online: The Appeal <theappeal.org/thesentencing-of-larry-nassar-was-not-transformative-justice-here-s-whya2ea323a6645/>.

•

Kaba, Mariame, “So You’re Thinking of Becoming an Abolitionist” (2020), online: Medium <level.medium.com/so-youre-thinking-aboutbecoming-an-abolitionist-a436f8e31894>.

•

Kushner, Rachel, “Is Prison Necessary? Ruth Wilson Gilmore Might Change Your Mind” (2019), online: The New York Times Magazine <www.nytimes.com/2019/04/17/magazine/prison-abolition-ruthwilson-gilmore.html>.

•

Law, Victoria, “Against Carceral Feminism” (2014), online: Jacobin <www.jacobinmag.com/2014/10/against-carceral-feminism/>.

•

Lopez, Marlihan “Opinion: Prison Abolition is a Feminist Struggle” (2020), online: CBC <www.cbc.ca/news/canada/montreal/prison-abolitiondefund-the-police-violence-against-women-feminism-1.5809912>.

An example of a reformist reform would be body cameras for police or prison guards. An example of a non-reformative reform would be eliminating the use of solitary confinement or reducing the size of the police force.

16 See “LAWS 2276 ‑ IMPRISONMENT PENAL POLICY” (consulted on 17 August 2021), online: Schulich School of Law <www.dal.ca/faculty/law/current-students/jd-students/courses/laws-2276-imprisonment-penal-policy. html>; “Legal Values: Prison Law, Policy & Reform” (consulted on 17 August 2021), online: Osgoode Hall Law School <www.osgoode.yorku.ca/courses-and-seminars/legal-values-prison-law-policy-reform/>. 17

See Davis, Are Prisons Obsolete?, supra note 3 at 9.

See Critical Resistance Definitions, supra note 1.

19 See “Reformist reforms v. abolitionist steps in policing” (last modified in 2020; consulted in 17 August 2021), online: Critical Resistance <https://static1.squarespace.com/static/59ead8f9692ebee25b72f17f/t/5b65cd58758d 46d34254f22c/1533398363539/CR_NoCops_reform_vs_abolition_CRside.pdf>.

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2020 was the year of the Internet. Citizens under lockdown ordered sushi on UberEats and toilet paper on Amazon, while binge-watching Bridgerton on Netflix. Not surprisingly, behind closed doors, the online pornography business also boomed. Nowhere is this more evident than in the case of OnlyFans, the newest entrant to the online porn industry. In March 2020 alone, the site added 3.5 million users and 120,000 content creators,1 and, as of January 2021, OnlyFans has 90 million subscribers and 1 million content creators.2 Within the feminist movement, pornography persists as a polarizing and multifaceted issue. Some feminists decry porn for modelling and promoting misogyny and violence against women. Others argue that watching or creating porn can be empowering, enabling women to rebel against a patriarchal system that has long demonized their sexuality. These theories have real-life implications; as the well-known feminist phrase goes, “the personal is political”.3 Amidst these opposing views, it may be difficult for a woman who watches porn, enjoys sending nude photos, or works in the porn industry to reconcile her personal relationship to porn with feminism. To explore this tension, this article aims to situate OnlyFans within overarching feminist debates about the role of pornography in the feminist movement.

What is OnlyFans?

OnlyFans: The Final Frontier in the Sex Wars?

OnlyFans is a subscription-based social media service. Users pay a monthly fee in order to access photo and video content from the creators they subscribe to. The platform has attracted professional and amateur sex workers, as well as celebrities seeking to connect more directly with fans, such as Bella Thorne and Shea Coulée. Content is typically, although not exclusively, sexual in nature. Content creators charge a subscription fee ranging from $4.99 to $49.99 per month, of which they keep 80%.4 Subscribers can also message content creators directly and “tip” them up to $100 in order to receive personalised videos or messages. This a distinctly different model from “tube” sites such as Pornhub, which disseminates pornography for free and allows users to upload and download material without restriction. OnlyFans was founded in 2016, partly in response to Instagram’s increasingly hostile policies towards nudity and sexually suggestive content.5 While OnlyFans allows sexually explicit content, the platform prohibits the advertisement of full-service sex work and escort services. These policies are designed to comply with Stop Enabling Sex Traffickers Act and Allow States and Victims to Fight Online Sex Trafficking Act (known as FOSTA/SESTA).6 FOSTA/SESTA, passed by U.S. Congress in 2018, is intended to curb online sex trafficking by restricting the online advertisement of sex work.7 However, the bill has been heavily criticized for its use of vague, overbroad language, and for promoting the censorship of sexually suggestive content on the Internet.8

1 Joshua Espinoza, “OnlyFans Explained: What You Need to Know About the NSFW Site Beyoncé NameDropped” (15 December 2020), online: Complex < www.complex.com/life/what-is-onlyfans-explainer>.

Trigger warning: pornography, sex trafficking & exploitation

2 Gillian Friedman, “Jobless, Selling Nudes Online and Still Struggling” (13 January 2021), online: The New York Times <https://www.nytimes.com/2021/01/13/business/onlyfans-pandemic-users.html>. 3 Carol Hanisch, “The Personal is Political” (February 1969), online: Writings by Carol Hanisch <www. carolhanisch.org/CHwritings/PIP.html>. 4 Jacob Bernstein, “How OnlyFans Changed Sex Work Forever” (9 February 2019), online: The New York Times <www.nytimes.com/2019/02/09/style/onlyfans-porn-stars.html>.

´ NATALIA PAUNIC BCL/JD ‘20, McGill Faculty of Law

5 See e.g. Brit Dawson, “Instagram’s problem with sex workers is nothing new” (24 December 2020), online: Dazed <www.dazeddigital.com/science-tech/article/51515/1/instagram-problem-with-sex-workers-is-nothing-new-censorship>. See Instagram, “Terms of Use” at Basic Terms, s 2. 6 KC Ifeanyi, “The NSFW Future of OnlyFans, where Celebs, Influencers, and Sex Workers Post Side by Side” (26 March 2021) online: Fast Company < www.fastcompany.com/90611207/the-nsfw-future-of-onlyfans-wherecelebs-influencers-and-sex-workers-post-side-by-side>. 7 See Heidi Tripp, “All Sex Workers Deserve Protection: How FOSTA/SESTA Overlooks Consensual Sex Workers in an Attempt to Protect Sex Trafficking Victims” (2019) 124:1 Penn St L Rev 219 at 233 ff. 8

Ibid at 234—5.

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Tim Stokely, OnlyFans’ founder, initially pitched the platform as a place where “horny guys” can “direct” content creators to act out their fantasies.9 However, in theory, the creator-driven model of OnlyFans can do more than satisfy its subscribers; the platform also allows creators to produce their own pornography. Creators thus develop their own protocols, dictate the limits of their own porn, and enjoy the associated profits. In practice, content creators have had varying experiences. Some creators have successfully monetized an existing interest in sexual expression, or supplemented their income.10 Others have been less satisfied with the app, noting that users can be demanding, and that the safety concerns of traditional pornography, such as social stigma, doxxing, and stalking, persist.11 Moreover, since FOSTA/SESTA’s restrictions apply equally to OnlyFans, creators whose content is found to fall under FOSTA/SESTA’s broad umbrella of “promoting or facilitating prostitution” have seen their accounts blocked and their earnings withheld.12 These theoretical and practical concerns play into the discussion of whether OnlyFans can be perceived as a feminist tool.

Sex Wars (1982 – present) Additionally, a feminist discussion about pornography is incomplete without reference to the divisive history of pornography within feminism. In the 1960s and 1970s, the feminist movement began to focus on the politics of sexuality, establishing sexual freedom as a potential arena for feminist collective action. As described by Carole Vance, the movement for sexual freedom sought “to reduce the dangers women face, and to expand the possibilities, opportunities, and permissions for pleasure that are open to them”.13 In doing so, the movement pursued the feminist ideal of a world where women do not have to choose between pleasure and safety. While feminists mobilized around sexual health and education, access to birth control and abortion, and more robust rights for queer women, fierce disagreement continued to surround pornography. This disagreement on pornography, among others, culminated in the so-called “sex wars”, which began at the 1982 Barnard Conference on sexuality.14 During the conference, feminist scholars of the anti-pornography camp, such as Andrea Dworkin and Catharine MacKinnon, as well as other members of Women Against Pornography or WAP (no, not the “macaroni in a pot” variety)15 viewed pornography as eroticizing violence and misogyny, as well as visually representing and reinforcing women’s subordination to men.16 These scholars criticized the porn industry as an exploitative, capitalist monolith, structured to cater to a heterosexual male audience while generating significant profits for male executives who operate out of the public eye.17 Women participating in or condoning pornography, especially BDSM porn, were therefore branded as complicit in their own subjugation, and a liability for the feminist movement. The anti-porn camp believed that increased regulation or an outright prohibition of porn was necessary to curb women’s sexual oppression, and 9

Bernstein, supra note 4.

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drafted model legislation to that end. Pro-pornography and sex-positive feminists, such as Ellen Willis, while acknowledging the sexist nature of mainstream pornography, refused to take a narrow view. They argued that porn facilitates the exploration of sexual expression and identity, and that censorship would “make women ashamed of their sexual feelings, and afraid to be honest with them”.18 Moreover, the pro-porn camp was more willing to consider the importance of sexual pleasure (for some), and its potential as a source of empowerment.19 To condemn porn, then, was to condemn women.20 The pro-porn camp was thus staunchly against strict regulation, arguing that it would disproportionately censor women and members of LGBTQ+ community.21 More generally, pro-porn feminists disagreed with treating sexual politics as a single-issue campaign against porn, which they viewed as restrictive and reductionist.22 The impact of the sex wars carried through into third wave feminism, which complicated the previously accepted, rudimentary binary of “indignant innocence” and “unenlightened guilt”.23 Third wave feminists of the 1990s, such as Rebecca Walker and Donna Minkowitz, moved towards a more inclusive, intersectional feminism focused on mutual goals, rather than mutual points of identification. Third wave feminists defined themselves in opposition to the second wave, presenting a more unified, sex-positive position on pornography. The third wave follows a pro-porn stance, accepting that feminists can enjoy porn intended for a heterosexual male audience, as well as porn involving pain or violence.24 Consequently, it views the consumption of pornography as a tool for the individual to explore gender, sexuality, and sexual preferences, and as part of a healthy, sex-positive agenda.25 While third wave feminists acknowledge potential links between pornography and sexual exploitation, they note that pornography can also challenge and subvert mainstream patriarchal and heteronormative culture.26 These themes have continued into feminism’s nascent fourth wave, which is characterized by the use of the Internet as a tool of communication and mobilization, and by the inclusion of trans and other gender justice issues as feminist issues.27 The theories of third and fourth wave feminism indicate that, if given the means to produce their own pornography, women can create pornography that is not simply an exploitative, capitalist product.28 The participatory approach of third-wave feminism, coupled with fourth-wave feminism’s focus on technology, consent, and intersectionality, thus has more potential to create socially responsible, feminist porn. If the feminist porn scene in Toronto is any indication, this feminist porn will promote features that are often missing from porn aimed at heterosexual men, such as equal pay and negotiating power for creators, respect for various body types and gender and racial identities, and a

Crawford, supra note 16 at 139.

10 Ann Marie Elpa, “I Became a Cam Girl Because of COVID-19” (16 June 2020), online: Refinery 29 <www. refinery29.com/en-ca/onlyfans-cam-girl-coronavirus>.

19 Ummni Khan, “Let’s Get It on: Some Reflections on Sex-Positive Feminism” (2017) 38:3-4 Women’s Rts L Rep 346 at 348.

See e.g. Friedman, supra note 2.

Crawford, supra note 16 at 139.

12 Jake Hall, “OnlyFans Never Wanted to be a Sex Worker’s Paradise” (September 2020), online MEL Magazine <www.melmagazine.com/en-us/story/onlyfans-never-wanted-to-be-a-sex-workers-paradise>. See US, Bill, HR1 1865, Allow States and Victims to Fight Online Sex Trafficking Act of 2017, 115th Cong, 2018 (enacted).

21 For example, the practical effect of the Supreme Court of Canada’s decision in R v Butler, [1992] 1 SCR. 452 [Butler], whereby the Court prohibited “degrading” and “dehumanizing” content, was to ban feminist literature, and gay and lesbian porn at the Canadian border. See Lynn S Chancer, “Feminist Offensives: Defending Pornography and the Splitting of Sex from Sexism” (1996) 48:3 Stan L Rev 739 at 750.

13 Carole S Vance, “More Danger, More Pleasure: A Decade after the Barnard Sexuality Conference” (1993) 38 N Y Sch L Rev 289 at 290.

Vance, supra note 13 at 292.

Crawford, supra note 16 at 153.

Ibid.

Ibid at 140.

Ibid. Vance provides an in-depth review of the Barnard conference and its effect on feminism.

15 See Cardi B, “WAP (Feat. Megan Thee Stallion)” (7 August 2020), online (video): Youtube <www.youtube. com/watch?v=hsm4poTWjMs>. 16 Bridget J Crawford, “Toward a Third-Wave Feminist Legal Theory: Young Women, Pornography and the Praxis of Pleasure” (2007) 14:1 Mich J Gender & L 99 at 136. 17 See Patricia Nilsson, “MindGeek: the secretive owner of Pornhub and RedTube” (17 December 2020), online: The Financial Times <https://www.ft.com/content/b50dc0a4-54a3-4ef6-88e0-3187511a67a2>.

Ibid.

Ealasaid Munro, “Feminism: A Fourth Wave?” (2013) 4:2 Political Insight 22 at 22.

28 Eleanor Wilkinson, “The Diverse Economies of Online Pornography: From Paranoid Readings to Post-Capitalist Futures” (2017) 20:8 Sexualities 981 at 983.

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focus on the pleasure of all parties involved.29 In other words, feminist porn provides an alternative to the porn at the centre of the sex wars, for those who seek one.

Is OnlyFans Feminist? OnlyFans, most likely unwittingly, reflects the goals of third wave and fourth wave feminism by providing a platform that is well-suited to the production of feminist porn. With respect to consumption, subscribers remain free to explore the type of porn they wish to engage with, while directly supporting sex workers. With respect to production, OnlyFans gives creators the ability to produce their own pornography within their boundaries, while monetizing it at a price of their choosing. The intellectual property rights to the content uploaded on the site remain with the creator, affirming women’s ownership over their sexual content and ensuring that creators are kept accountable with respect to the legality of what they upload.30 Moreover, while posting sexual content online is not entirely free from danger, the site provides a relatively safe platform for creators to share sexual content. For instance, OnlyFans’ terms of use explicitly prohibit users from sharing, downloading, or otherwise transforming content from the site.31 The terms also explicitly prohibit creators from uploading illegal material, or material featuring another person without their consent.32 In doing so, OnlyFans seeks to avoid Pornhub’s recent scandals involving stolen or illegal content and revenge porn.33 OnlyFans is still in its early days, and how it will develop remains to be seen. OnlyFans’ safeguards are not infallible, and it almost certainly prioritizes mainstream pornography catering to the male gaze and to male desires. Moreover, it remains affected by the overreach of FOSTA/SESTA. However, the platform nonetheless represents a step in the right direction for the porn industry. OnlyFans democratizes and diversifies pornography, providing a more ethical alternative to sites such as Pornhub, and making more room for consent and creators’ rights. Ultimately, OnlyFans reinforces the idea that, as feminists, the pornography we consume or produce is our choice. For this sentiment, we have many decades of feminists to thank.

29 Jenny Yuen, “Feminist Porn Alive and Well in Toronto” (3 May 2020) online: Toronto Sun <www.torontosun.com/news/local-news/feminist-porn-alive-and-well-in-t-o>. 30

OnlyFans, “Terms of Service” at Acceptable Use Policy, ss 8, 9 online: <https://onlyfans.com/terms>.

Ibid at s 10. As of recently, OnlyFans’ technology now prevents screenshots or screen recording.

Ibid at para 10.3 ff.

33 Nicholas Kristof, “The Children of Pornhub” (4 December 2020), online: The New York Times <www. nytimes.com/2020/12/04/opinion/sunday/pornhub-rape-trafficking.html>.

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Within a two-week period, McGill University entirely altered its modes of operation through extensive administrative coordination, heavily relying on its students’ trust. That the transition to virtual learning took place with the backdrop of an unfolding global health and economic crisis is a feat. It is our hope that the McGill Faculty of Law will learn from this crisis and shed the bureaucratic tendencies that favour complacency over innovation. It is within the Faculty’s power – and certainly its responsibility – to deliver a more equitable experience for all of its students, while enhancing everyone’s legal education. Ultimately, if McGill fails to learn from this experience, it will continue to systemically disadvantage students who find themselves in underprivileged positions.

Pandemic(s!) Across the Faculty A report by Université de Sherbrooke tells us that, as of September 2020, one in five adults is experiencing symptoms of severe depression and/or anxiety; that this inflates to one in four in urban areas; and that anglophones and those aged 18 to 24 constitute two of the three groups whose mental health has deteriorated the most due to the pandemic.1 The mental health consequences of the pandemic are explosive within the Faculty, as a (then) 1L tells us:

COVID-19 X Mc Gill Faculty of Law This article was born out of Prof. Sheppard’s ‘Covid-19 and Global Inequalities’ class and a survey answered by about fifty classmates. We emphasize our gratefulness to all those who shared their experiences.

Written in January 2021

AUDREY PARENT & CAMILA FRANCO BCL/JD Candidates at McGill Faculty of Law

I think the school should be aware of the fact that there are more students who are planning to drop out than I can count on one hand (and those are just the ones I've been speaking to). I don't think there's gonna be a mass exodus or anything, but I would call this a crisis. Please consider the S/U option. Depression seems to be on the rise. COVID-19 lockdowns exacerbate existing inequalities in student demographics in so many ways. We have a classmate confined in a remote community whose data usage, which is limited and costly, has gone up to 130% of their data plan. Some students are experiencing financial instability, living in small or shared spaces. Another student got “Zoom University”-induced eye strain in October, which made it painful to watch a screen. A peer reports that “many of us are also important sources of support for our close ones in addition to school,” a role that may have been amplified by the pandemic. Other students were suddenly left without the support of family care or the day programs and services they relied on. International students were indefinitely separated from their families and experienced a frustrating imbalance between their tuition fees – $1,462.53 per credit – and the altered quality of a Zoom education.2 In March of 2020, the Faculty of Law announced that it would give students the ability to elect the Satisfactory/Unsatisfactory (S/U) option for exams up to 48 hours post submission in light of the global health crisis unfolding.3 Consequently, students mobilized and circulated a petition, which collected 41 student testimonials and 286 signatures, asking that the faculty adopt a mandatory S/U policy. The petition highlighted the inequalities that an optional S/U grading scheme caused, stating: The rapid changes to daily life coupled with the potential severity of looming societal effects from the pandemic are an invitation to interrogate the justification for differential outcomes in student performance. We believe that the opt-in S/U policy risks the creation of two classes of students based on circumstances that are extraneous to measurements of academic performance.

1 “L’anxiété et la dépression: une deuxième catastrophe au Québec”, Actualités de l’Université de Sherbrooke (29 September 2020), online: Université de Sherbrooke <https://www.usherbrooke.ca/actualites/nouvelles/ sante/sante-details/article/43540/>. 2 See “Droits et frais du 1er cycle (2021)” (consulted on 26 September 2021), online: Comptes Étudiants <https://www.mcgill.ca/student-accounts/fr/droits-et-frais/droits-ete/droits-1er>. 3 We cite the email sent by Dr. Rosalie Jukier, current Associate Dean (Academic) of the Faculty of Law at McGill, with the subject line “S/U option for Winter 2020 courses,” on 20 March 2020.

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[...] This opt-in policy deepens the divide between the two classes of students that this grading system creates, framing the largest societal crisis we have faced in a generation in terms of personal choice.4

Suzanne Fortier, for example, sits as both Principal and Chair. Power imbalances were only exacerbated by the pandemic, as decision-making for a university of 40,000+ students is now concentrated within the Emergency Operation Centre, which is largely staffed by senior administration and includes no student representation. It has been a fight just to get members of the Emergency Operation Centre to vote on Zoom rather than by emails, for more interaction and accountability.

Their advocacy was articulated into four major arguments, stating the current policy: (1) exacerbated inequities among the student body; (2) created a gambling mindset “incongruous with the gravity of the current pandemic”; (3) was inadequate regarding the nature of the employment recruitment process; (4) and had been designed without any meaningful consultation with students. Although the Faculty declined to implement a mandatory S/U policy, there was still a reaction (unpaid and unacknowledged) student advocacy labour, and eventually students were allowed to select S/U after receiving their grades. Students replied by circulating a mandatory S/U solidarity pledge, which 77 students signed. Classmates who participated in our survey cited the accommodations granted by the administration during the Winter 2020 exam period as crucial. The opt-in S/U policy alleviated the stress of many students who were dealing with emergencies. Others noted that the reduced stress of grades allowed them to learn the material more effectively. The fact that students could choose when to start timed exams enabled them to plan according to their needs or write when they were best prepared. Other students fasting for Ramadan expressed relief for more flexibility. As of the Fall 2020 semester, our classmates expressed gratitude for the benefit of recorded lectures, which allowed them to attend to unforeseen circumstances occurring throughout this semester. It also proved helpful for students with mental health and/or mobility difficulties, and who have caretaker responsibilities. These responses demonstrate how these modifications can have positive consequences for the entire student population that cannot be achieved by accommodating individual requests. Besides providing needed flexibility in light of the pandemic, Faculty-wide policies enable more students to prepare better work that showcases their knowledge. They also mean that students are not unfairly disadvantaged by virtue of personal circumstances unrelated to their abilities.

And Yet Despite the positive impacts of the Winter 2020 modifications, the McGill University Senate – and so the Faculty of Law – persisted on maintaining a grading scheme during the Fall 2020 exams.5 The lack of meaningful support for students was likely connected with inadequate consultations with the student body for policy-making. We were unaware of institutional power machinery within McGill, so we set up a talk with two (again, unpaid) student senators, Brooklyn Frizzle and Adrienne Tessier. We were informed of, and were appalled by, the non-existent student decisional power within McGill. For a democratic assembly, McGill Senate presents serious procedural irregularities.

4 See “Petition: McGill Faculty of Law Should Implement Mandatory S/U Grading in light of the COVID-19 Crisis” (consulted 26 September 2021), online: <https://docs.google.com/document/d/1bExQEVYZUMi3zcfC9j2O3hsGh19FYefXWgoq_VVmKIc/edit>. 5 We do not consider the S/U up to six credits policy as an adequate S/U policy (although we are extremely grateful to our student senators, for they are the ones that obtained this concession).

At the start of the Fall 2020 semester, Brooklyn and Adrienne, along with student senators and periodic allies,6 started advocating for an opt-in S/U for the 2020-2021 academic year. As a catastrophic second wave was announced, their argument went accordingly: implement an opt-in S/U now to alleviate stress amongst students, instead of rushing it at the end of the semester. Their requests have been constantly denied with what one would probably call ‘active bad faith.’ For example, Brooklyn presented the motion for an opt-in S/U to the Senate, endorsed by most student associations. The motion was formally rejected as Brooklyn had accidentally linked the wrong article in a footnote. This (unsubstantial) error was characterized as ‘deliberately misleading’ and ‘unprofessional’. It seems that the Senate’s main concerns regarding a S/U policy are patronizing (‘this is what is best for our adult students’), that it would be costly in administrative fees or damaging to McGill’s reputation, all of which are presented with little evidence. Last spring’s exceptional S/U policy could have provided the necessary space to seriously engage in a conversation about grading, and ultimately the very purpose of education – simply put, should higher education be about grades as the pathway to employment, or rather about learning and rising? A peer comments, I feel that it is time to be bold and compassionate with grading. We know there are problems with it. We can be brave enough to face them and find a better solution. Baring that level of ingenuity, creativity, and compassion, at least a respectful and full justification for sticking with mental-illness-exacerbating grading during a global crisis is necessary. In line with reconsidering grading, there should be a realistic approach to expectations at the Faculty. Earlier in the year at a Town Hall meeting about online learning, Professor Jukier stated that there would be no adjustment to expectations because the Faculty didn't want a generation of graduates having less knowledge than others. I appreciate that, and I also don't want to leave the Faculty with a different level of education from past graduating classes, but it's just not realistic to expect the same of students in completely dissimilar circumstances. In my final classes this semester I have had one prof say "we made it through the semester, way to go!". This is realistically where we're at right now and that's ok. Clearly, there are valid considerations for opposing a mandatory S/U, especially as an ad hoc policy. A student mentions that grades are reassuring as they are the element they feel they have agency over right now. Another remarks that, as a first-generation law student, they did not have their peers’ (parental) networks, and so their strategy has always been to shine through high marks. Some also had scholarships that are conditional on academic performance – the Chief Justice R.A.E. Greenshields Memorial Scholarship, for example, requires one to rank in the top ten percent of their class to be renewed. Anyways, the conversation on the mandatory S/U policy sheds light on institutional

6 Mostly professors – yet they are not unionized, and rumour has it there has been retaliation against professors advocating on students’ behalf in the past.

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structure – from firm hiring to university admission processes – and to the consequent unhealthy culture that leads students to self-identify with their grades. But in the present circumstances, as a student remarks, our grades will not represent our absolute comprehension of class materials. That is so, in part, because our grades are relative to the performance of so many of our peers who have had learning barriers created or heightened by the pandemic (or a new born) (or a part time job) (or whatever life throws your way, pandemic or not), and in part because legal education relies on communication, which is significantly altered by online learning.

I find that grades are a perpetuation of inequality in “precedented” times. Again, it was acknowledged by the Dean and the Faculty that this year (and realistically every year) is particularly difficult for students of colour. Particularly Black and Indigenous students. Yet these students who live under the pressure of daily systemic racism and fear of state violence are expected to perform as well if not better than their white peers in a grading system that ranks students and measures relative comprehension rather than absolute comprehension.

Honestly the learning style is pretty subpar. The best professors are those who kept a good sense of humor and humility. Also, the ones who empathized with us. It was extremely upsetting to have profs act like everything is normal and we can perform at the same level as pre-COVID. We can't. Expectations need to be relaxed. I think some professors are too privileged to understand how this is actually playing out in our real lives. Our basic needs are going unmet; it's hard to see anyone for physical or mental health related-issues, we're often experiencing food insecurity, our apartments are loud and unconducive to studying, and some of us are all alone all the time. I have experienced the worst mental health effects I've had in years. Sometimes I had to turn my camera off in class because I was having visceral panic attacks. At a law faculty that teaches extensively about equitable treatment, it is regrettable that we would not employ such teachings to our own community. Putting this in terms of constitutional law, I argue we should move beyond mere formal equality (i.e. equal treatment and application of an optional S/U grading scheme) toward substantive equality - which demands the equal outcome for all of a mandatory pass/fail grading scheme. To paraphrase and recontextualize Andrew Petter and his critique of section 15 equality rights, provided everyone is equally disentitled to the benefits of a grade, the requirements of a truly equitable response to this pandemic can be met. Essentially, the administration is conserving the status quo, a simpler way of proceeding than reimagining how opportunities are granted to students. Some respondents stated in the survey that they felt the administration’s adamant rejection of the grading conversation was rooted in concerns about McGill’s prestigious reputation and not in the best interests of the students. The Faculty has also evaded responsibility by suggesting to professors that they make classrooms more accessible (e.g. by recording lectures and lowering reading volume), thus placing the burden on students to insist on accommodations. Students cited the lack of transparency on accommodation decision-making as frustrating. While the Faculty promotes the Local Wellness Advisors and Office of Students with Disabilities, some accommodation requests have been lost in email threads or tossed between student service bodies. We reiterate that these are problems rooted in the bureaucratic nature of the Faculty as an institution, and not on the individual staff members or professors who are dealing with the difficulties of the pandemic, too.

Make It Matter Another memory from 1L Integration Week is Dean Leckey speaking about the Faculty’s efforts to diversify its student body. Our class was born in 29 countries, has 15 mother tongues, includes eight Indigenous folks, and ranged from 18 to 39 years old as of August 2019. Diversity in socio-economic backgrounds remains unachieved.7 Yet some students claim not to be supported once they are admitted to the Faculty. One respondent says, 7 Robert Leckey, “Welcome”, Quid Novi (26 August 2019), online: <https://issuu.com/quidnovi/docs/ qn_vol41_no1> at 3.

‘There’s no way that I’m the only one in this type of situation,’ says a peer. It is up to us to transform this pandemic into an invaluable opportunity to reimagine a healthier and more equitable learning environment. We cannot stress enough that accommodation policies would benefit from an understanding of inequalities as systemic, instead of merely individual. Binding consultations with the student body – rather than merely consultative ones – would acknowledge students as best positioned to assess a policy’s appropriateness, especially as it relates to their well-being. Finally, we do recognize that a mandatory S/U is not the ultimate equalizer – it will rather likely increase the weight of other privileges such as parental networks – but we have to acknowledge that the grading scheme as it exists does enhance a performative environment that is detrimental to mental health. It is within the Faculty’s power to carry on some of the unprecedented modifications it made this year into the future, so that substantive equality can be better advanced within its own community.

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Se perdre à petit feu et se demander si nos cendres sont aussi fertiles qu’on nous l’avait promis. Si tout se transforme ou si on s’est simplement abandonné·e. Regarder sa sœur et vouloir lui crier qu’elle est assez. Qu’elle est exceptionnelle. Penser à son âge, avoir envie de lui montrer qui j’étais alors. Les insultes que je m’écrivais. Des documents Word entamés aux notes verrouillées de mon téléphone brisé. Des spasmes de mots, de plaisirs, de douleurs. Les mots qu’on a écrits rapidement, les mots qui ne mentent pas.

Sans Titre

Penser beaucoup au garçon dont le sourire calmait mes tempêtes. Me demander s’il connaissait l’importance des bouées qu’il attachait à chacune de ses blagues. Me rappeler douloureusement que ce garçon n’a jamais vraiment existé, que ses bouées étaient brûlantes. Que ce garçon est mort, remplacé par l’homme qui a brûlé les femmes. Marcher dans les rues de Montréal en pleine pandémie, mon manteau vert volant au vent. Me sentir comme une protagoniste. Tous les yeux sont sur moi. Tous, sauf les miens.

ROSE PAQUET Étudiante BCL/JD à la Faculté de droit à McGill

Feuilleter les livres et réaliser que j’aurais voulu être une personnalité intoxicante. Si forte, si entêtante. Tu ne m’aimeras pas, mais tu ne m’oublieras pas. Vouloir que mon odeur ne s’efface qu’à coût de bain de tomates. Que mon odeur harcèle chacun de tes souvenirs. Que mon odeur existe.

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Être obsédée par le sentiment d’invisibilité. Il n’y a rien de plus douloureux que de se faire dire qu’on est trop gentille pour être insultée. Évaluer le succès d’une soirée au nombre de fois où mon prénom est prononcé. Se réfugier dans l’art. Dans le crochet l’écriture la broderie le chant les crises. Se dire qu’on en fait assez. Que nos mains suintant de privilège ont travaillé assez fort. Qu’on ne gaspille pas de nouveau notre talent naturel. Créer jusqu’à en saigner. Se demander si le filtre que tout·e·s ont l’air d’avoir nous sera un jour livré. Vulnérabilité. Comment me frapper le cœur en un mot. Je n’ai pas de carapace. Elle me manque, mais son absence est ma plus grande force. Se sentir profondément champagne socialist. Naviguer entre mes chalets et ma gêne. La gauchiste au collier de perles. Entendre tous ceux qui me marcheront dessus. Hésiter entre l’ivresse et le sommeil, l’admiration et la terreur. Écouter les questions posées sur des sujets que je n’ai même pas compris. Me laisser emporter par le courant de leurs mots, de leur intelligence. Me demander si je suis assez vieille pour grandir de façon aussi architecturale. Avoir un besoin fou de me détruire l’âme et les cheveux. Pour me convaincre que je n’ai pas perdu ma jeunesse, que je suis encore adolescente. Que je ne suis pas à

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l’aube de l’âge adulte, mais au début du plaisir. Les raccourcir, en effacer des bribes de couleur. Me reconstruire. Nager à coups de poing, me débattre les mains liées. Changer d’idée pour me laisser flotter doucement, me laisser bercer par l’enchainement des jours. Me demander ce qui fait de moi une personne. Garder sous silence les fardeaux de ma famille. Parler de ma blanchité, de ma richesse, de mon bien-être. Ne jamais parler des peurs de ma mère. De ses larmes. Avoir le sentiment qu’elle est papier bulle et que je suis porc-épic. Me laisser emporter vers la perfection inatteignable. Glisser doucement vers le vide. Envoyer des photos des larmes, des joues tracées de mascara. Des photos de l’après. Crier aux autres de m’appeler dans leurs malheurs, leur promettre une oreille attentive. À mon tour, murmurer que la semaine n’est jamais facile. Partir au chalet Me faire annuler ma rébellion Prise dans une semaine de solitude Me demander Tout Être au plus bas du sommet, être la plus chanceuse des malheureuses. Me répéter que ma honte n’aide personne. Me dire que changer le monde que d’étudier que de crier ma colère aiderait bien plus. Et me résoudre à télécharger Tinder. Je ne veux pas te ghoster. Mais je ne t’ajouterai pas à mes contacts.

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Découvrir ses problèmes relationnels en ne voyant personne. Ne plus sentir l’air frais. Ne plus sentir l’Autre. Se perdre comme un poisson dans une cage dorée. Penser à celleux qui souffrent pour vrai. Voir mes ami·e·s à des kilomètres, me sentir plus pleine à chaque fermeture d’écran. Me sentir invisible. Terriblement invisible. Attendre ma première note et me convaincre qu’elle seule peut me voir. Qu’elle seule me validera. Attendre à ne pouvoir rien faire d’autre qu’attendre. Et encore et toujours cette anxiété qui littéralement m’aveugle. Sentir mon cœur battre à la chamade, ralentir mon souffle, tenter de dicter la cadence. Attendre. Entendre encore moins les voix. Me sentir obligée de coucher ma tête. Ou pire Entendre la cadence rapide forcée par ma glue anxiogène. Mais continuer à tout entendre. À tout dire. Puis sentir doucement le début de tremblement, loin dans mon corps. Le sentir me piquer les yeux. Comme une blessure qu’on voudrait ouvrir. Qui démange. Sentir l’énergie monter en flèche, finir par céder. Et laisser les secousses contrôler ma vision. Contrôler mes yeux. Révulsion soudaine, fermeture involontaire. Passer des nuits à rire avec toutes les personnes que j’aime. Rire à en briser mes points de suture. À en briser mes barrières.

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Recevoir mes notes et ne jamais avoir été aussi fière d’être banale. Sourire lorsque je ne devrais pas et ne jamais avoir été aussi fière d’être banale. Et finalement vider le laid par les mots, pour ne vivre profondément que le beau.

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Une fierté vite remplacée,

Elle est de retour, j’hyperventile.

Une fois la lettre rangée,

Je me noie dans sa noirceur,

Par la présence constante

Je sombre dans ses abysses.

D’une vieille amie. Puis le calme revient, Elle m’approche, tout sourire. Sur ma gorge, elle ressert sa prise. Les pensées dévalorisantes affluent ;

La vague de douleur s’apaise. Je suis toujours là, intacte, Mais je sais qu’elle me guette.

Chère Anxiété, te revoilà. Dans notre chère Faculté, Dès son arrivée, ses branches

On apprend à viser haut,

Atteignent mes poumons, les compressent,

À performer, à être des alliés,

Les vident d’air pour mieux les remplir de mensonges :

Sans Titre VICTORIA PRINCIPE Étudiante BCL/JD à la Faculté de droit à McGill

« Pas assez », « incapable », « imposteur ». Compagne des Hauts Potentiels, Elle se faufile entre les Zooms, Entre la lecture de jurisprudence, Entre les lettres des arrêts. Son écorce est solide, Je peine à la combattre. Combien mes racines doivent être abîmées, Pour que ma valeur se limite des lettres sur un bulletin ?

À défendre nos droits. On apprend aussi à rire de nos larmes, On prend en photo nos cernes violacés, Et nos breakdowns, normalisés.

maintenant

Certains diront qu’il s’agit du prix à payer. Je le reconnais, Nous avons de la chance d’être ici, D’avoir une éducation dans une Faculté Que nous savons réputée. Mais pourquoi accepter de se perdre,

Mon premier résultat. Le prix d’avoir été une enfant prodige, Est que je suis insatiable. Ce n’est pas assez, je ne suis pas assez. S’ensuit les crises de larmes,

Dans l’océan de stress ? Les priorités semblent désajustées. Parfois, je me demande comment continuer d’avancer. Je me demande, à quoi serviront des juristes dévorés d’anxiété ?

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From the Weighing Scales to Justice Scales Trigger warning: Discussion of fatphobia, disordered eating, diet culture

“you aren’t disturbed by social media, you’re disturbed by your own reflection”

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Scrolling through Instagram has been proven to cause low self-esteem I know my self-esteem suffered greatly from scrolling through social media platforms; in terms of appearance and generally feeling unsuccessful in comparison to others. However, I spent the past year re-curating my feed by unfollowing certain celebrities and following instead bopo, fat positive and anti-diet activists. Sometimes I now wonder, who is unrealistically thin, believes in dieting and manipulates and edits their photos? “The feed” has realised it can no longer sell me weight loss and fitness products because, after all, we are just receptacles of adverts they think we want to see, a tool for our “personal shadows”: “you aren’t disturbed by social media, you’re disturbed by your own reflection.” This piece narrates the shift in my personal reflections, which partly involved using social media as a tool of self-empowerment. However, as lawyers, we are also meant to hold a mirror up to systemic injustices within the legal system and outside it. The real world of fatphobia still very much exists with real consequences for those in larger bodies. I became aware of anti-fat bias through social media accounts of rad fat folks and felt there was a gap within mainstream legal-feminist discourse on these issues. On fatphobia, perhaps it is important to distinguish diet culture and holding a negative body image, which affects everyone (though some societal groups more than others), eating disorders (which can be experienced by anyone at any weight), and the sizeism experienced by those in larger bodies alongside identities which intersect with weight discrimination. A thin person who holds a negative body image is not treated differently based on their size, and thus working on one’s own body image does not directly challenge fat oppression. While I have been much larger in the past, I speak to the law and discrimination aspects in this piece now as a medium-bodied person from the place of allyship. I am also speaking to a past self who viewed her larger body as in need of fixing, primarily through an 18 month on-off keto diet.

Phone a friend ugh... dishes. Maybe I will give that podcast a listen while I clean

JF MUR BCL/JD Candidates at McGill Faculty of Law

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Lady Justice’s Feminist Anger

Body acceptance is about justice, equality, resistance and intersectional feminism

Tarot card retrieved from: http://www. cbdtarot.com/download/

As a Libra, I identify the most with the Justice tarot card…. When I realised how duped I had been by the weighing scales, my feminist anger rang through me louder than Lady Justice clanging her Libra scales together! Once you put on the feminist glasses, you see everywhere the wild injustice of the diet industry’s ploy. The diet industry is intent on controlling women’s bodies and teaching us that we ought better to trust the rules of the diet than any of our internal cues of hunger. When we fail to live up to the rule (don’t eat after 5pm! Eat breakfast! No carbs! Don’t eat chocolate…(except on Sundays, after you’ve been for a run in the full moon when Mercury is in retrograde!) then we are failures. Given that 96% of people who diet regain lost weight, and more, it is safe to say the odds are stacked in favour of a male-dominated industry that turns over millions of dollars a year through our perpetual “failure.” Sometimes I wonder how many men at lunch meetings and conferences are terrified of ordering food or are talking about diets. How many of them perform a certain way of eating to appear virtuous or play the “good fatty”? Or are they just making money and succeeding at their jobs? I spent an enormous amount of mental energy and time calorie counting and collecting disgusting keto “bread” recipes. Keep us obsessing about our weight as the number one priority, then other commitments, such as law school, become secondary (and not to mention difficult to perform when suffering from “keto-flu”.) To some extent, I felt that losing weight was a precondition to being successful and that being fat made me a failure. The perception of fat people as failures is toxic and perpetuates fat oppression. This is why body acceptance must also address sizeism, even if that means confronting my own internalised fatphobia.

Fuck Diet Culture. “It is widely evidenced in the scientific literature that binge eating is primarily a symptom of dieting or attempts at food and weight control.” Isabel Foxen-Duke4

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In Dr. Ancel Key’s famous Minnesota Starvation Experiment, healthy men were asked to half their usual intake of food from 3,492 calories to 15705. Nutritionists Tribole & Resch observe that the results “mirrored the symptoms of chronic dieting.”6 Some of the men, they note, developed an obsession around food (collecting recipes and constantly talking about food), some deliberately exercised to gain calorie points, and some even developed bulimia (bingeing and purging). When they stopped the restrictive diet, they ate 8000-10,000 calories a day to make up for their famine. This makes sense given food insecurity is related to ob*sity7, which of course is intimately related to class and race, casting doubt on the common stereotype that fat people eat too much. After spending weeks in food deprivation from keto, maybe I did eat near to 8000 calories in a day when I could hold on no longer with such few carbs in my bloodstream. I would proceed to vomit after. I felt like a hideous monster, telling myself I had no willpower and unresolved emotional issues (a common pernicious stereotype of fat people). I remember my therapist back in 2017 addressing my weight gain, asking if there was some emotional distress causing it, and suggesting ways to incorporate more exercise in my routine. The dominant narrative, one my mother growing up was very much stuck in the cycle of, is that diets are good, health, nay obligatory, for people (like I was) who are “ob*se.” I had never really considered it was the restriction itself that was causing the vicious cycle of starvation, binge, purge, regret/guilt, begin starvation again the next morning that resulted in an even further disassociation from, and disrespect for, my body. Since stopping the keto diet I have binged and purged only a handful of times compared to several times a week. At least for me, it seems, dieting was a primary cause of these habits and my self-loathing and body hate.

Weight Discrimination in Law and Healthcare In a survey of 2000 Human Resources professionals, 93% of said they would hire a thin person over a fat applicant with the same qualifications.8 Take, for example, Marie-Josée Landry’s application to the CISSS de la Montérégie-Est which was initially accepted, but ultimately rejected, due to her BMI being too high and this being a risk factor in contracting COVID-19.9 CISSS later told Ms. Landry she would be able to work if she had a supporting doctor’s letter (which is problematic given the rampant fatphobia in the health profession). The issue for Ms. Landry, and many others who face weight discrimination, is that weight is not a protected class in the Quebec Charter of Rights and Freedoms (nor the Canadian Charter of Rights and Freedoms for that matter). Discrimination on the basis of weight is “prohibited where obesity is characterised as a real or perceived disability.”10 However, as Lucy Wang writes, “[t]he majority of fat people are not discriminated against on the basis of an actual or perceived weight-based disability. Rather, they are discriminated against because employers perceive their weight as a signal of underlying personal flaws”11 such as laziness, a lack of self-discipline, anger, and low intelligence. Rights serve an important expressive function and would signal that weight is not an individual personality fault, which may encourage individuals to take advantage of legislation. Efforts to include weight as a protected category in Manitoba, Ontario and Quebec have not been successful.12 Moreover, the current legal approach leaves aside the ways in which other intersecting identities beside disability, such as gender, race or Indigenous identities may affect the perception of a fat employee and the experience of oppression.13 It is clear that as lawyers we have an obligation to place sizeism on our radar in intersectional feminist and human rights discourse. However, we should also consider the way in which “soft laws” such as health and education policies contribute to the discrimination, surveillance and discipline of bodies categorised ‘over’-weight. For instance, fat women do not have the same access to fertility treatment because of the presumption that any issue experienced by a fetus is to do with weight and as a result extreme “discipline and control is exerted [over women] in the name of population health” such as carefully monitoring weight loss and denying reproductive rights.

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Moreover, health“care” professionals hold disgustingly low respect for their fat patients. Puhl writes,

The idea that being fat makes you unhealthy is grossly overstated, and certainly cannot be “fixed” by self-control16, especially given weight cycling actually causes cardiovascular issues.17 Besides, no one owes you their health. Everyone deserves decent and respectful healthcare and the Health at Every Size approach has the most promising health biomarker outcomes for fat patients.18 This is, quite simply, because fat people are dying, not because they are fat, but due to inequality in the provision of healthcare rooted in anti-fat bias.

“Nurses agreed that obesity can be prevented by self‐ control (63%) and that obese persons are unsuccessful (24%), overindulgent (43%), lazy (22%), and experience

unresolved anger (33%). In addition, 48% of nurses

I am sick and tired of hearing health professionals at body image workshops blaming social media and societal pressures for negative body images in teenage girls and women. Social media is just the tip of the iceberg of structural anti-fatness.

agreed that they felt uncomfortable caring for obese

Take a long, hard look at yourselves in your fatphobic mirrors.

patients, and 31% would prefer not to care for an obese patient at all.”15

From Body Checking to Being Intuitively Embodied I often found it difficult to appreciate the value of the present tense, something encouraged in mindfulness and yoga as a method of embodiment. Perhaps this was because it was hard to remain curious about the movements of my body when I just wanted that body to disappear (and the purpose of the yoga class is secretly to help achieve that mission.) It is similarly difficult, I have found, to enjoy food when it is accompanied by judgment and shame, and impossible to know when you’re hungry or full when you are disassociated and detached from bodily signals to deliberately starve. I had not realized part of the trauma, anxiety, depression, and stress I felt daily was primal and bodily as much as mental – my body was screaming, are we safe? Will we survive? Please help. I remember for the first few weeks of eating properly I lay in bed at night and experienced a sense of presence, peace and security that had not been there for a long time. Food no longer feels utilitarian or terrifying, but is instead satiating, social, nutritional, emotional, enjoyable, and peaceful. I hope over time this embodiment will alleviate my body checking of my neck/chin and hips that is often distressing and compulsive. Every day I wake up and the first thing I do is check, check, check… but then I try to follow it up by saying “Right now, in this moment, this is your body. If this body today is the body you have forever, then you have no choice but to tolerate it and respect it”. Maybe one day this can be replaced for affirmations of self-love and reduce checking, but I am not there yet. I guess it takes time to disperse the shadows of body shame and put back together the jigsaw puzzle of shattered mirror reflections of chins, hips, legs and stomach rolls and, back to a whole, embodied person.

The screenshot of Instagram post by @ragenchastein

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Endnotes 1 Grace Holland and Marika Tiggemann, “A Systematic Review of the Impact of the Use of Social Networking Sites on Body Image and Disordered Eating Outcomes” (2016) 17 Body Image 100. 2 An Instagram meme from “@doyoujusteverfuckingascend” quoted in Rebecca Jennings, “Can social media ever be truly ‘body positive’?”, Vox (13 January 2021), online: <https://www.vox.com/ the-goods/22226997/body-positivity-instagram-tiktok-fatphobia-social-media>. 3 “Stephanie Yeboah (@stephanieyeboah)”; “Sonalee (she/they) LCSW MEd (@thefatsextherapist)”; “Sofie Hagen (@ sofiehagendk)”; “Ratnadevi Plus Size Creative (@sapphiresplendour)”; “Ragen Chastain (@ragenchastain)”; “Aubrey Gordon, Your Fat Friend (@yrfatfriend)”; “Ashlee Bennett, AThR (@bodyimage_therapist)”; “Iga Wiejak (She/Her) (@iga.wiejak)”; “@ thebodyisnotanapology ”. 4 Isabel Foxen Duke, “Isabel Foxen Duke - Stop Fighting Food”, Isabel Foxen Duke (consulted on 26 September 2021), online: <https://isabelfoxenduke.com/>. 5 Ancel Keys et al, The Biology of Human Starvation (2 vols) (Oxford, England: University of Minnesota Press, 1950). 6 Evelyn Tribole and Elyse Resch, Intuitive Eating: A Revolutionary Program that Works, 3rd ed, (New York: St. Martin’s Griffin, 2012) at 59. 7 Liping Pan et al, “Food Insecurity Is Associated with Obesity among US Adults in 12 States” (2012) 112:9 Journal of the Academy of Nutrition and Dietetics 1403 8 “Fattism rife in business”, Occupational Health & Wellbeing Plus (25 October 2005), online: Personnel Today <https:// www.personneltoday.com/hr/fattism-rife-in-business/>. 9 Jean-Francois Desaulniers, “Le CISSS Montérégie-Est reconsidère l’embauche d’une femme en surpoids” (30 October 2020), online: iHeart Radio <https://www.iheartradio.ca/boom/ boom-1041/nouvelles/le-cisss-monteregie-est-reconsidere-l- embauche-d-une-femme-en-surpoids-1.13835087>. 10 See Emily Luther, “Justice for All Shapes and Sizes: Combatting Weight Discrimination in Canada” (2010) 48:1 Alb L Rev 167 at 186. See also Montréal (City) v Quebec (Commission des droits de la personne et des droits de la jeunesse), [2008] 2 SCR 698 at 76—80. 11 at 1924.

Lucy Wang, “Weight Discrimination: One Size Fits All Remedy?” (2008) 117:8 Yale LJ 1900

See Edith Bernier’s campaign in Quebec on Grossophobie.ca: <http://grossophobie.ca/>.

13 For instance, in Turner v Canada Border Services Agency, 2020 CHRT 1, Mr. Turner argued that the perception hewould shy away from work tasks was because he was singled out as an overweight black man. The judge accepted that Mr. Turner perceived himself as overweight but found he was not large enough to be perceived as (primarily by the employers) as disabled. 14 Andrea LaMarre et al, “Fat Reproductive Justice: Navigating the Boundaries of Reproductive Health Care” (2020) 76:2 Journal of Social Issues 338 at 339. 15 Rebecca Puhl and Kelly D Brownell, “Bias, Discrimination, and Obesity” (2001) 9:12 Obesity Research 788 at 792. 16 A Janet Tomiyama, Britt Ahlstrom and Traci Mann, “Long-term Effects of Dieting: Is Weight Loss Related to Health?” (2013) 7:12 Social and Personality Psychology Compass 861. 17 Eun-Jung Rhee, “Weight Cycling and Its Cardiometabolic Impact” (2017) 26:4 Journal of Obesity & Metabolic Syn- drome 237 at 239. 18 Linda Bacon and Lucy Aphramor, “Weight Science: Evaluating the Evidence for a Paradigm Shift” (2011) 10:1 Nutrition Journal 9.

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For women and people of colour (POC), an essay by Hadiya Roderique propelled the discussion of diversity within big law firms. In “Diversity by the Numbers: The Legal Profession”, she describes her experience of being an African American woman at a Toronto Bay Street firm and exposes the culture of such firms, which often excludes racialized groups.1 It comes as no surprise that there is a lack of diversity within the legal field. This article aims to explore the potential causes of the lack of representation of women and POC in the corporate industry, analyzes the statistics collected on big law firms2, and proposes solutions to address this issue. It argues that interested students should continue applying to positions in the corporate field while being aware of the challenges of stepping into a potential legal career as a woman and/or POC.

Representation of Women and People of Colour in Big Law Firms in Canada

The legal profession exists, in part, to meet the needs of the public.3 This selfregulating field maintains its legitimacy by adopting a code of ethics, establishing national and local associations, creating training programs at universities and setting standards.4 Max Weber’s theory of professionalism argues that the legal profession takes these actions to maximize its prestige and establish a monopoly; Legal professionals create this system to increase or maintain the demand for their services and knowledge.5 They protect their unique role in a consumer market by creating barriers to acquiring formal legal education, such as the LSAT. 6 The LSAT was introduced in response to the insistence of the ABA and other professional groups that there was “overcrowding” in the legal profession in the 1920s. As such, it is now more difficult than in the past to get accreditation from more rigorous and prestigious schools.7 The lack of representation can be attributed to many factors, one of which includes the admissions processes and its criteria. The gateway to a legal career is the admissions process, the gatekeepers being admissions committees8. Noah Wernikowski has shown that 47 percent of the variance in first-year law grades (i.e. their distribution) can be explained by looking at a student’s LSAT and GPA scores.9 The LSAT, however, is discriminatory against minority groups. The most successful test takers are Caucasians from a high socioeconomic class.10 This “test gap” can be explained by the cost of studying for the LSAT, among other factors. As a result, white students from a high socioeconomic background are more likely to be admitted to law schools than their minority-group counterparts. This leaves students from minority groups at a disadvantage. Consequently, people of colour are disproportionately excluded from law classrooms and the pool of applicants to work in the legal profession. While it may be true that certain law schools not require an LSAT score, most Canadian law schools outside of Quebec do. It holds true, then, that most jurists in the field have taken it and use it before applying to school.

Choice of Law Schools Affecting Diversity To become a lawyer as portrayed by the media, it appears necessary to attend a prestigious law school, which offers the “best education the legal field may have to offer”.11 1 Canadian Centre for Diversity and Inclusion, “Diversity by the Numbers: The Legal Profession” (2018) <https://ccdi.ca/media/1391/20180125-dbtn-qualitative-research-final-updated.pdf>. 2

See Table 1.

3 Ronit Dinovitzer, Sociology of Legal Careers Week 1 (Department of Sociology, University of Toronto, 7 January 2020); John Sutton, “Law as a Profession” in Law/Society: Origins, Interactions and Change (Thousand Oaks, CA: Pine Forge Press, 2001) 223 at 226.

PREKSHA MEHTA BCL/JD Candidate at McGill Faculty of Law

Sutton, supra note 3 at 228.

Lee Stuesser, “The Future of Canadian Law Schools” (2013) 37:1 Man LJ 155 at 156.

Sutton, supra note 3 at 232.

Ibid.

Lee, supra note 5 at 161.

9 Noah S Wernikowski, “Examining the Exam: Use of the LSAT in Canadian Law School Admissions Procedure” (2017) 80:1 Sask L Rev 289 at 293. 10

Dinovitzer, supra note 3.

Margot E Young, “Making and Breaking Rank: Some Thoughts on Recent Canadian Law School Sur-

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The most popular method of determining which schools are in this category is to refer to rankings. In the U.S., students use the American index, while Canadians refer to rankings in Maclean’s or Canadian Lawyer magazine surveys.12 Ranking law schools causes the following issues: homogeneity in law programs; commodification of law degrees; and competition within law schools, which are supposed to be joint providers of an important public service.13 Rankings raise the issue of homogeneity as high-ranking schools admit students with high LSAT scores and competitive CGPAs to maintain this prestige. This process of admission leads to classrooms full of students who have similar academic and socio-economic backgrounds, which in turn, leads to a lack of diversity. As previously mentioned, the groups with the most competitive LSAT scores are those with higher socioeconomic status and are not from minority groups. As such, high-ranking law schools, in admitting only these students, are closing their doors to minority groups and creating homogeneity within their law classes.14 The lack of diversity in law schools leads to a lack of representation in the legal field, which has further negative implications for this profession, the purpose of which is to serve all people. Rankings do not inform on the diversity within law schools, the academic and extracurricular programs, or the campus environment.

Law School Experience as a Person of Colour The experience that one has in law school is directly correlated to the law school itself and the individual. Law school is not necessarily just about learning academic content and memorizing legal precedents; rather, it teaches you how to be a lawyer.15 Law schools’ informal (outside of the classroom) curriculums, particularly in elite ones, encourage students not to compete with one another, but rather to cooperate.16 They shape students into upper-class lawyers and give them a taste of prestige.17 Elite law schools also aim to socialize students into professional behaviour by hosting networking events such as the Coffeehouse at McGill University where they meet potential employers and holding seminars within 1L integration workshops.18 This positive experience, however, may not be shared by minority groups, especially women of colour. Women have less social capital than their male counterparts and are more likely to drop out of law school.19 Women go through typecast socialization, by which they are expected to conform to gender roles based on the assumptions embedded within legal culture.20 Marilyn Poitras explains that law school is designed for a certain class, intended for a certain end.21 This class excludes women of colour, as they are more likely to lack a support system or role models in law school22. All of this to say that students who identify as women of colour may face challenges in law school. For women, especially women from minority groups, these challenges do not go away as they enter veys” (2001) 20 Windsor YB Access Just 311 at 317. 12

Ibid at 318.

13 Michael Sauder & Wendy Espeland, “Ranking and Diversity” (2009) 18 California Review of Law and Social Justice 587 at 601. 14

Ibid at 506.

17 Desmond Manderson & Sarah Turner, “‘Coffee House: Habitus and Performance Among Law Students” (2006) 31:3 Law & Soc Inquiry 649 at 661. 18

Ibid at 659.

19 Diana Yun-Yi Pan, “Typecast Socialization: Race, Gender, and Competing Expectations in Law School” in Robert Nelson et al, eds, Diversity in Practice: Race, Gender and Class in Legal and Professional Careers (Cambridge: Cambridge University Press, 2016) 141 at 142.

the work field.

The ‘Ideal’ Work Environment In the Canadian context, the ideal work environment for many is working at a private law firm on Bay Street. The private law structure reflects the Cravath system, in which associates work for seven years before they are either promoted or kicked out.23 As for partners, very few are equity partners and most need to maintain their competencies to keep their position; their jobs are neither permanent nor safe. Even so, many have high satisfaction, even if it is out of necessity.24 This cannot necessarily be said for two groups: women and minority groups. Corporate law firms, even though they symbolically put in the effort to be inclusive, lack diversity and exclude women.25 Ronit Dinovitzer and Bryant Garth explain that even though corporate law firms are open to women and minorities, powerful and prestigious positions in corporate law are reserved for white men only.26 Furthermore, women in law internalize their experiences of having a lack of role models and being stereotyped as the “mommy first, lawyer second”, and seem to have to negotiate their professional and familial expectations.27 Joyce Sterling and Nancy Reichman claim that women’s contributions are undervalued; they still lack upward mobility in their careers and remain underrepresented among partners by making up less that 40 percent of nonequity partnerships.28 There are systemic barriers within law firms that discourage women from attaining the same promotions as their male counterparts; this starts with the unequal representation of women in law schools and subsequently in large corporate firms. This is well illustrated by Table 1: in most prestigious law firms in Canada, women represent about 45 to 50 percent of associates, while only about 30 percent of partners. See the percentage distributions at DLA Piper, BLG, Blakes and Dentons as examples. As for minority groups, they are represented even less in corporate law firms. Table 1 shows that people from minority groups make up about 20 percent of associates and barely 12 percent of partners. This may be because of the lack of social capital which aids lawyers in their careers.29 Racial minorities are less likely to have this advantage, which leads to a potential racialized wage gap. Minorities are also least likely to be seen in leadership positions. This further explains why in Table 1, the highest percentage for minorities in partner positions is 20 percent at Weirfould LLP. Meanwhile, leading firms like Norton Rose Fulbright and Davies have lower percentages of minorities in partner positions. A few examples of firms with higher percentages of women and people of colour are McCarthy Tétrault LLP and Miller Thompson McMillan LLP. These statistics are presented not to antagonize law firms, but rather to illustrate that work needs to be done to increase diversity within big law firms in Canada.

Mentorship and minority groups The way lawyers continue working is by learning and watching their mentors.30 They rejoice in receiving extrinsic rewards, such as benefits and promotion opportunities, and intrinsic rewards, such as autonomy, challenging work and supportive working

Ronit Dinovitzer, SOC 475 Week 4 (Department of Sociology, University of Toronto, 28 January 2020).

15 Robert Granfield & Thomas Koenig, “Learning Collective Eminence: Harvard Law School and the Social Production of Elite Lawyers” (1992) 33 The Sociological Quarterly 503 at 504. 16

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Ronit Dinovitzer, SOC475 Week 5 (Department of Sociology, University of Toronto, 2 February 2020).

24 Ronit Dinovitzer & Bryant G Garth, “Lawyer Satisfaction in the Process of Structuring Legal Careers” (2007) 41 Law & Soc’y Rev 1 at 6. 25

Pan, supra note 19 at 163.

Dinovitzer & Garth, supra note 24 at 15.

Pan, supra note 19 at 165.

28 Joyce S Sterling & Nancy Reichman, “Overlooked and Undervalued: Women in Private Law Practice” (2016) 12 Annual Review of Law and Social Science 373 at 382.

Ibid at 144.

Marilyn Poitras, “Through My Eyes: Lessons on Life in Law School” (2005) 17:1 CJWL 41 at 44.

29 Fiona M Kay, “Social Capital, Relational Inequality Theory and Earnings of Racial Minority Lawyers” (2019) 32 Research in the Sociology of Work 63 at 65.

Ibid.

Ronit Dinovitzer, SOC475 Week 3 (Department of Sociology, University of Toronto, 21 January 2020).

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relationships with coworkers31. Studies have shown that those with more mentors get greater and more diverse career rewards than those with one or no mentor.32 The Cravath system in private firms is conducive to fostering these relationships; experienced lawyers are likely to guide those newer in the field and show them the ropes of the profession. Based on prior discussion, it can be hypothesized that women and people of colour are discounted from mentorships. Contrary to this claim, studies show this hypothesis to be false. If this is the case, then, why do we still see a lack of representation of minority groups? Some possible explanations include unconscious bias, the existence of in- and out- groups, and homophily.33 Those in leadership positions want to see people in the same positions who look like them. Marginalization of those not adhering to hegemonic masculinity, particularly women and people of colour, requires them to work twice as much to get ahead in their work as their white counterparts.34

Weirfoulds LLP

Solutions and Conclusion Right now, the priority of diversification seems to be at the forefront of every big private law firm in Canada. The lack of representation of minority groups in the legal field, then, for the most part is not intentional but rather a by-product of unconscious bias and a lack of diversity that is replicated from law schools themselves. Some solutions presented include training and assistance from third-party professionals versed in culture counselling in hiring processes.35 As discussed, mentorships and relationships are huge assets regarding success in corporate law. As such, racialized and women lawyers require partners to take interest in their endeavours; while this may not happen naturally, firms could formalize mentorship processes to give everyone a fair chance. Finally, clients, law schools and law societies play important roles in demanding change within the legal field. By paying attention to diversity and asking firms to take active measures, these organizations can have an impact on the representation of women and minority groups in leadership positions. Implementing these methods may lead to incremental steps towards progress and greater representation of women and people of colour in big law firms. This study is a call for further research and action to increase diversity within the legal field.

Dinovitzer & Garth, supra note 24 at 8.

Table 136 Percent Female Associates

Percent Minority Associates

Percent Female Partners

Percent Minority Partners

Tory’s LLP

Stikeman Elliott

Osler, Hoskin and Harcourt LLP

Norton Rose Fulbright LLP Canada Montreal

Norton Rose Fulbright

Miller Thomson

McMillan LLP

McCarthy Tetrault LLP

McCarthy Tetrault

Lawson Lundell LLP

Lavery, De Billy L.L.P

Goodmans LLP

Fogler, Rubinoff LLP

Fasken Martineau Dumoulin LLP

DLA Piper Global Law Firm

Dentons

Davies Ward Phillips and Vineberg LLP

Cassels Brock and Blackwell LLP

Burnet, Duckworth and Palmer LLP

Borden Ladner Gervais L

Borden Ladner Gervais

Blaney McMurtry

Blake, Cassels and Graydon LLP

Bennett Jones LLP

Bennett Jones

Aird and Berlis LLP

32 Fiona M Kay & Jean E Wallace, “Is More Truly Merrier?: Mentoring and the Practice of Law” (2010) 47:1 Can Rev of Soc’y 2 at 2. 33

Canadian Centre for Diversity and Inclusion, supra note 1.

Ibid.

36 Ronit Dinovitzer, Empirical Assignment Results 2020 (March 27 2020) [unpublished, archived at University of Toronto Mississauga] (These results are based on a collection of data that was posted on websites of the firms listed as of January 2020; There may be changes to these numbers since then. For firms that are listed multiple times, they show the representation within each office or specific division of the firm)

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Introduction

Annie MacDonald Langstaff Workshop 2020-2021

Leading the Change: The Potential and Power of Women in Law C O O R D I N AT E D B Y P R O F. S H A U N A VAN PRAAGH H O S T E D B Y T H E M C G I L L FA C U LT Y O F L AW AN D T H E C H R L P

ELISE MALLETTE BCL/JD Candidate at McGill Faculty of Law

The Annie MacDonald Langstaff Workshop series began in 1988 in honour of Annie MacDonald Langstaff, who, in 1914, was the first woman and single mother to earn a law degree in Quebec at the McGill Faculty of Law, with First Class Honours. Despite this achievement, the province refused to allow her to write the Bar examinations because she lacked her long-estranged husband’s permission. She continued to fight for female enfranchisement in Quebec while being employed as a legal assistant at Jacobs, Hall, Couture & Fitch (now, Davies Ward Phillips & Vineberg) for 60 years. It was not until 1941 that the legislation was changed to allow women to be admitted to the Quebec Bar. In 2006, Langstaff was posthumously admitted to the Barreau de Montréal and awarded the rarely-given Medal of Honour, which is currently displayed at the McGill Faculty of Law. This year’s series consists of four workshops, two of which are named in memoriam of honoured alumnae—Patricia Allen and Margot E. Halpenny. In 1992, the Faculty of Law’s Class of 1988 commenced the memorial lecture in honour of classmate Patricia Allen. A bright student and successful lawyer working with Revenue Canada, Allen’s life was abruptly and violently ended in 1991 when her ex-husband shot her with a crossbow in public. Her family, friends, and colleagues at the Faculty of Law petitioned the government to ban crossbows and succeeded in 1994. Margot E. Halpenny, BA'72, LLB'76, was a member of the Ontario Bar and spent the last ten years of her career working for Noranda Minerals Inc as legal counsel. After her passing, donations poured in from friends in her honour. Her family felt that these donations would be properly directed to McGill's Law Faculty, given Margot’s educational background and the family’s strong affiliation with McGill. In honour of these women and all who are leading the change to combat prejudice and violence against women and minorities, this lecture series aims to foster interconnectivity, education, collaboration, and support to develop the law in a more socially equitable fashion.

Workshop 1: Yvonne Dausab—Minister of Justice of Namibia 23 October 2020

Yvonne Dausab has led a life fighting for human rights. Growing up under apartheid, she witnessed racial discrimination, gender-based violence, and rampant cultural subjugation. She used this platform to launch a career of vociferous legal human rights activism as a legal practitioner for the High Court of Namibia, as a practitioner in the non-profit and private sectors, as a law lecturer and Deputy Dean at the University of Namibia, and now as the esteemed Namibian Minister of Justice. The discussion, led by doctoral candidate, Vishakha Wijenayake (Sri Lanka), emphasized the critical importance of activism in all forms but particularly in the legal realm. Minister Dausab encouraged not only traditional activism, mentioning her recent attendance to a socially distanced protest as a form of expressionism, but also activism in law and policy as well as everyday life. Reminding herself of her elevated role as a policymaker, she humbly encourages us all “to connect to the people and let them know you know what you’re saying and learn about what they need.” When asked what activism means to her and what advice she would give to activist law students, she responded, “Activism is about understanding and sacrifice. You must relinquish some of your own privileges

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and comforts.” Acknowledging one’s own privilege and understanding historical and cultural contexts are key. Even though it is “a very delicate balance to maintain… once an activist, always an activist.” Minister Dausab addressed her concerns surrounding contemporary contexts of gender-based social inequities, income inequality and its disproportionate effects on women, LGBTQ+ rights, and the importance of access to justice. She strips away political veneer and asks, “What are justice imperatives? What does access to justice look like and mean?” leaving the door open to every possible solution, including increasing human capital and infrastructural capacity, shifting to more restorative justice in lieu of punishment, and building paradigm-shifting precedence. To aim for transformative justice, “we need to enhance the trajectory.” In spite of oppressive patriarchal systems, which she acknowledged places many forms of undue labour on women, she and other women have been pushing for gender parity in key political decision-making bodies. Her advice to law students—"understand that it is a competitive space. You need to have the knowledge, if it means spending the hours developing the knowledge and skills. It’s not about competing with others but about being competent. As women in leadership roles, whether you like it or not, you are representative of women, so you must be aware of the issues we face. It won’t be easy, you will face patriarchal tendencies, but you remember why you are there in the first place.”

how the Brazilian Bank, World Bank, and others have advanced development without considering human rights to making it a primary concern), combatting forced labour in all sectors (from subnational up to international levels), challenging the extractive sector (targeting the predatory models of mining, agriculture, timber, and faulty dams), and fighting for climate justice (launching strategic litigation cases and advancing national and international advocacy). In these ways, Neiva and her colleagues fervently challenge the current Brazilian administration, which has had a strong narrative against human rights, Indigenous peoples, the environment, women, and black people, particularly youths. One of the primary themes of the talk was accountability, including as it applies to corporations, the government, and even Neiva and her work at Conectas! Paula asked her about Conectas’ strategic approach which has been more conflictive and aimed at shaming human rights violations perpetrators. Neiva proudly and forthrightly discussed the centre’s project of creating an online portal where news stories of human rights violations were posted in various languages. They then invited the companies to respond to these reports, giving them the opportunity to even apologize to the communities they have harmed, though they typically gave wordy responses denying wrongdoing. The centre also granted the communities the opportunity to voice their frustrations, potentially the only chance they have at making the perpetrators hear them. Holding states and corporations accountable is incredibly difficult, particularly in any context involving international law. When asked about her thoughts on its adequacy as an accountability tool, Neiva acknowledged the difficulty of successfully holding these large entities responsible for their human rights violations but, characteristically, shifted to positive outlooks and hopeful horizons, making reference to the French Loi de Vigilance and UN treaty discussions on corporate accountability. In an era where corporations can be just as powerful as nations, the relationship between them and civil society has changed many things, including the functioning of democracy. Issues such as freedom of expression and fake news in connection with WhatsApp and Facebook, in addition to issues of privacy and workers’ rights with companies like Uber and Lyft, are critical contemporary challenges which Neiva and her team are ardently working on. “We see an increasing role of companies, shaping not just elections but the State and governments themselves.” Elevating the prevalence of human rights in legal education and fighting for its improvement in innumerable ways, Julia Neiva is certainly maximizing her potential and power as a woman in law.

Workshop 2: Julia Neiva—Coordinator of Development and SocioEnvironmental Rights at Conectas Direitos Humanos, Brazil 13 November 2020

Julia Neiva, based in São Paulo, Brazil, is currently the Coordinator of Development and Socio-Environmental Rights at Conectas Direitos Humanos, a non-profit organization which she helped found. She received her LLB from the Pontifical Catholic University of São Paulo, her human rights-focused LLM from Columbia University School of Law in New York, and her post-graduate degree in human rights at University of São Paulo. In addition to various global human rights initiatives, Neiva has taken on creative academic endeavours by leading innovative human rights business law courses in and collaborative research trips with American law schools. She has also assisted the São Tomé and Principe Government to draft and implement oil revenue transparency laws. In her dialogue with doctoral candidate, Paula Martins (Brazil, DCL year 2), Neiva discussed how her human rights efforts center around two intersectional axes: socio-environmental rights and racio-sexual discrimination. The general perception in Brazil of human rights is its application to prisoners’ rights, due to the violent and oppressive history of slavery stemming from colonization, but Neiva has broadened that understanding to apply to every sector of life. This expansion poses challenges to democracy. “We have to think about social and environmental rights as also fundamental to democracy, in addition to voting and representation. Democracy and development have to be inclusive. If it’s only about increasing production without thinking about the impact on people, it’s not going to work, and it’s not working.” Her work has four main focuses: reforming financial institutions (internally shifting

Workshop 3: Indira Jaising— Human Rights Lawyer, CoDirector of Lawyers Collective, India 5 February 2021—Patricia Allen Memorial Lecture

One of the Greatest Leaders of the World, according to Fortune magazine, Indira Jaising is a towering figure in the legal arena. Having practiced since the 1960s, Ms. Jaising has shaped Indian law to becoming more equitable and inclusive. She and her husband founded the Lawyers Collective, an NGO devoted to progressive feminist causes, which has operated for 40 years now. Ms. Jaising also contributed to the landmark Domestic Violence Act, was named the

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first female Senior Advocate in the High Court of Bombay, and was the first woman to serve as Additional Solicitor General of India. In her illuminating conversation with doctoral candidates, Azar Mahmoudi (Iran, DCL year 3) and Amy Preston-Samson (Australia, DCL year 3), Ms. Jaising shared her wisdom about using the law as an instrument of change, one which she expertly wields, by testing the structure and strengthening identifiable weaknesses and gaps. With a bird’s eye view of legal, social, and temporal structures, she situated her experience by acknowledging the advocacy tools she inherited and wants to pass on to current and future generations, emphasizing, “It’s a question of how you use these tools.” Ms. Jaising expressed sincere gratitude for the women who brought their claims, entrusting their dilemmas to her expertise. It is for them and all Indian women that she took such a strong part in developing the Protection of Women from Domestic Violence Act (2006), expanding legal protections beyond the criminal sphere into civil and disrupting traditional public/private dichotomies. Ms. Jaising discussed her careful navigation of contentious issues throughout her career, such as balancing religious freedom and protection of minorities (or, more precisely, the minority of a minority—Muslim women in the Shayara Bano v. UOI case). Her radical use of the “untouchability” constitutional provision (Article 17) to argue against the exclusion of menstruating women from the Sabrimala Temple proved to be innovative and impactful and has been a “turning point in Indian legal history,” despite hostility she faced. Ms. Jaising also discussed the importance of the right to freedom of conscience, which spans many avenues, including the right to dissent against the ruling party or the right to adopt your religion of choice. Much of this freedom only exists within patriarchal structures, which must be tempered within the framework of secularism and can only be changed case by case. Referring to herself as one of “Midnight’s Children,” born on the cusp of independence of which India is now on the other side, Ms. Jaising paid homage to her feminist legal roots, contextualizing her contribution to the struggle to reclaim space against colonial rule and the shift towards more long-standing discrimination against women. As a highly innovative advocate, she has targeted the heart of human rights protections, such as fighting for prisoners’ right to health and women’s right to reside in a shared household. Ms. Jaising looks forward to seeing how law and society will continue to shape each other. In her momentous wake, young legal professionals such as ourselves would do well to take a page out of her book. “It is a learning experience, daily, for me. There’s a huge draw for imagination in law. If we can manage to keep our imagination alive (if imagination dies, then everything dies), then we will be in a position to carry on without much difficulty.”

Celebration. Professor Rosalie Jukier announced this celebration for McGill’s 200th anniversary on March 31, 2021, which will be accompanied by a website launch. Doctoral candidates Maria Ceballos (Colombia) and Valgerður Guðmundsdóttir (Iceland, DCL 2023) conducted the invigorating dialogue with two highly esteemed women in law—Gillian Lester, Dean of the Faculty of Law at Columbia University, and Camille Nelson, Dean of the William S. Richardson School Law at the University of Hawai’i at Manoa. Gillian Lester is the current Dean of Law and Lucy G. Moses Professor of Law at Columbia University. She hails from British Columbia where she obtained her BSc from the University of British Columbia. After earning her LLB from the University of Toronto and her JSD from Stanford University in 1998, Dean Lester began her legal academic career at the University of California, Los Angeles School of Law and later joined Berkeley’s Faculty of Law where she served as co-director of the Berkeley Center for Health, Economic and Family Security. Columbia’s Law Dean as of 2015, she continues to serve on various prestigious legal boards and advisory committees and enjoys international recognition for her scholarship in employment law and policy, distributive justice, and social insurance programs. Camille Nelson is a law professor and active Dean of the William S. Richardson School of Law at the University of Hawai’i at Manoa. Born in Kingston, Jamaica, she moved to Canada and earned her BA from the University of Toronto, her LLB from the University of Ottawa, and her LLM from Columbia University. She was the first black female law clerk at the Supreme Court of Canada in 1994. Dean Nelson has taught as a law professor at Saint Louis University and Washington University in St. Louis School of Law and was the first woman and first person of colour to become Dean and Professor of Law at Suffolk University where she initiated the Law Practice Technology and Innovation Institute. Before moving to Hawai’i, she served as Dean of the American University Washington College of Law, and her achievements in leadership have been recognized by, among others, Columbia University’s School of Law from which she received a prestigious Distinguished Alumni Award. Despite their disparate backgrounds, both women are non-American Deans of American law schools, which benefits them with unique approaches, such as being less nationally centric and having a broad lens perspective of other free and democratic societies. Diverse backgrounds enable them to think broadly, be more inclusive, and embrace uplift in unexpected ways. For women in law striving for gender balance, Dean Lester encourages hard work that is driven by real intention and leadership and thinking about where we are not and how to move into those spaces. Dean Nelson added that racial intersectional identities are also strong drivers of diversity in areas which are devoid of those voices. There’s a need to diversify and really think about social justice in areas we don’t normally think of as living. Dean Lester, conscious of all the shoulders she stands on, has been stalwart in motivating women in social sciences and other non-traditional avenues to join the academy. Women can become more of a voice of authority rather than simply a statistic and should be recognized for the heavy lifting we have already been doing. “When we find ourselves privileged in these roles, it’s important to ensure that the doors through which we’ve entered are not closed when we depart. Keep the door open, broaden it, and knock it down,” rallies Dean Nelson. She added that we must think more intentionally about removing colonial and patriarch structures—“Academic freedom is important, but increasingly the moment demands a deep review of what we are sharing as core… These are not

Workshop 4: Gillian Lester— Dean of the Faculty of Law at Columbia University, and Camille Nelson—Dean of the William S. Richardson School of Law at the University of Hawai’i at Manoa 12 March 2021—Margot Halpenny Memorial Lecture The final workshop session for this academic year is held in honor of Margot Halpenny and to launch the McGill University Bicentennial

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niche conversations. They are core to what law is.” It is important to teach students how to work with identity variables in the wake and midst of national and international racial reckoning. Both Deans emphasized the value of storytelling. Capturing human experiences in vivid ways is a critical skill in fostering empathy and becoming effective teachers, leaders, and lawyers. How we tell people’s stories and use narrative shapes institutions and how people, especially minorities, feel in them. This skill also translates to Dean Lester’s expertise in employment law. She recognizes that work is central to our identity and shapes our interactions with the world, our status, our life plans, and our sense of contribution. How the workplace—a microcosm of human relationships, society, and governance— is structured can allow people to flourish and cultivate social solidarity, or it can reinforce oppression and inequality. Structuring it in a way that allows for radically diverse people to all thrive is the exciting challenge. Dean Nelson reminisced about her clerkship with Justice Iacobucci, which was unexpectedly catalytic in her career. She encourages all law students to pursue a clerkship at any point because of how much she appreciates the academic and professional doors it has opened. Themes of diversity, mutual support, empathy, and peace were prominent throughout the talk. Dean Lester concluded on the noteworthiness of how two unique women deans have both centered around learning how we live different experiences with a broad lens.

The CHRLP would like to extend its sincerest gratitude to all of our guest speakers, doctoral student hosts, and coordinators. The 2020-2021 Annie Macdonald Langstaff Workshop has been wonderfully rich and thought-provoking. If you would like to hear more, please visit the links below. Workshop 1: https://www.youtube.com/watch?v=lyA31iqIqg4 Workshop 2: https://www.youtube.com/watch?v=240uO9p0STk Workshop 3: https://soundcloud.com/critengagementshr/anniemacdonald-langstaff-workshop-with-indira-jaising Workshop 4: https://www.youtube.com/watch?v=tMq3uFw1T78

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The dialogues are continuing into the new academic year! The 2021-2022 Annie Macdonald Langstaff Workshop’s theme is “Mothers-in-law”: Intergenerational Dialogues on Women and Human Rights. The Workshop will again feature four dialogues with legal experts and doctoral students. The fall term’s schedule is as follows: October 15, 2021 @ 1:00-2:30 ET on Zoom: Finding Voice Isabel Jaramillo-Sierra November 24, 2021 @ 10:00-11:30 ET on Zoom: Changing the Rules Radhika Coomaraswamy For continuing updates on this year’s Workshop series, follow the LSA’s Brief, Focus Online, and the CHRLP’s social media (Facebook, Twitter). Looking forward to seeing y’all there!

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The Act of Belonging

ANDIE HOANG BCL/JD Candidate at McGill Faculty of Law

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We all enter the legal profession faced with a worry of the unknown, but we all must choose to do the work of shifting through the proverbial bull to build a space where we feel we belong.

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When it comes to the legal profession’s attempts to diversify itself, I am pretty much a one-stop shop. Being Asian, queer, Jewish, and trans, I’m basically a walking punchline for a very inappropriate early 2000s joke. Yet despite being a BigLaw recruiter’s gold mine, I hesitate to imagine a long-term future in a large firm or even in the legal profession.

driving its members to maintain the exclusivity of said group. Ultimately, standards are shaped by those in power seeking to preserve the status quo. After all, who would not want to maintain what they see is best for themselves?

The legal world, like any other field centred around ego, remains an old boys’ club, marked by an informal system that limits power and success to wealthy, white, and straight men. Even with efforts to recruit from traditionally underrepresented demographics, it is no stretch to say that WASP-y masculinity remains the standard currency of social and professional mobility. The better one can navigate the trappings of the old boys’ ecosystem,1 the greater access one has to wealth and influence. However, this is not a pity piece or a solution to the patriarchal violence that the profession sustains and imposes on my fellow jurists. That requires a paradigm shift that will only come with a post-apocalyptic societal transition.2 Even though I am not white or wealthy, as a trans person who was AMAB (assigned male at birth), I was provided an express pass towards accessing the wealth and power promised by a legal career. Through chance and social conditioning, I was first in line for whatever leftover scraps of privilege that fell from those at the top if I was willing to play along with the norms set by the old boys. Instead, I enter the legal profession choosing to live honestly, expressing myself as a self-described “gender weirdo” whom can only be described as a non-binary cryptid.3 With how I carry and present myself in life falling outside the binary of man and woman4, my existence is a trade-off. Living and expressing myself honestly means trading away the prescribed masculinity and promise of professional mobility for personal integrity. Though it is empowering to make no exceptions for who you are, any trade comes with costs.

So why enter such a problematic profession where there seems to be no imminent possibility for change? I rely on W.H. Auden in that regard in saying that law is “like love we don’t know where or why.”6 Many of us enter the profession for interest and the promise of new opportunities but often find ourselves unsure of what future we have. We become nervous about what action to take next or if we are going down the “right path.” Like love, the legal profession is confusing, pulling us in all different directions emotionally and intellectually and pushing us into the unknown. Like love, I cannot singlehandedly change its inherent messiness and cruel nature, but I can choose to work on my relationship with the legal profession. We all enter the legal profession faced with a worry of the unknown, but we all must choose to do the work of shifting through the proverbial bull to build a space where we feel we belong. Though I have not asked for the identities I carry or this life I lead, I am able to embrace myself and live how I want, integrity whole. I enter the legal profession not with my potential mobility hindered but instead free and determined to chisel out my own sense of belonging.

By eschewing the norms that make those in power comfortable, I forfeit my place in line for potential scraps from the old boys’ table, instead replaced with the potential for social exclusion and obstruction of my professional and financial development. In essence, I am choosing to make it harder for myself to achieve the “promise of success” that entices many of my fellow jurists to the legal profession. To be clear, I carry no praise for the old boys’ club or the unfair advantages that they reap, but I cannot help but feel I am letting someone down by choosing to be honest to myself. As a first-generation student whose parents emigrated from their homeland for the potential of a better future for their children, I feel certain emotional obligations stemming from this history. To put my personal integrity first often feels as if I am turning my back on the sacrifices my parents have made to ensure that the next generation would have the possibility of achieving the so-called “American Dream.”5 Entering any profession requires an adherence to a certain code that is deemed appropriate by wide practice. We accept these predetermined industry standards, whether they seek to regulate the appropriateness of acts, language, or dress, upon entering any field. We do so with the understanding that these restrictions on our personal integrity are the price required for acceptance and professional mobility. Though the existence of standards can be argued for the sake of efficiency, all standards seek to exert control over the professionals who are bound to uphold them. This exertion of control raises the question of whom these norms inherently serve. Though you can argue that humans are naturally altruistic, this inclination becomes increasingly muddled as the proportions and value of privileges afforded to a certain group increases, 1

Read as “how much of a WASP-y man you can be.”

Though men in power will probably find a way to co-opt that as well.

Read as “outside of the western white prescribed notions of man and woman.”

See note 3.

5 Think what Vito Corleone wanted for his son Michael in The Godfather: the perfect life, with a white picket fence, hot wife, and two and a half kids in the suburbs.

6 See Wystan Hugh Auden, “Law, Say the Gardeners Is the Sun” in Collected Shorter Poems 1927–1957 (London: Faber and Faber, 1969) 154 at 156.

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”Twice as Good“: Black at McGill Law

ANNE-RAPHAËLLE BOLYA BCL/JD Candidate at McGill Faculty of Law

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I’ve been taught that achieving everything I had dreamed of would feel meaningful, but in the backdrop of profound racial unrest and pervasive inequality, the victory seemed hollow.

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Growing up, I never thought much of my blackness. I was raised in the immigrant enclave of Côte-des-Neiges, where Tamil mixes with Yiddish and Creole. My neighbours were Algerian; the nearest grocery store was owned by a Filipino family; and my friends were everything in between. We weren’t colour-blind, but diversity was a fact of life, just like the cold Montreal winters or foolishly hoping that the Montreal Canadians would go all the way.

of being dismissed by professors as irrelevant to the black letter law. Meanwhile, white peers, especially those passionate about social justice, occupied class spaces with ease. Quickly, I learned it was better to be silent.

In my first semester of law school, I nervously scanned the Moot Court looking for those who looked like me. As the Dean Leckey boasted about the diversity of our 180 cohort, I methodically counted in my head the number of black students: “5, 6, 7, 8 and wait, is she black?” Most of these students became my close friends, yet as I sat in the Moot Court, I became hyper-aware of my blackness. Many observers have noted the lack of diversity in the law school and professional environment as a whole, but it is another thing to live it. As my time at McGill progressed and I went through the recruitment process, I quickly learned that to be a black woman in law means to be both to be highly visible and invisible ** One day, when I was just a girl and falling behind in a class, my parents took me aside. “You have to work twice as hard to get half of what they got,” they said, disturbing my otherwise peaceful oasis of Côte-des-Neiges. “We don’t get second chances”. For most of my life, I accepted this black proverb to be true. Black women do not get to be mediocre––to simply exist instead of excel. This is especially true in the legal profession. It is a fact that black people remain underrepresented in law school. The vast majority of the 20 Canadian law schools do not collect or publish data on the racial makeup of their student bodies. Although Montreal has the second highest population of black people in Canada1 , at McGill, on average, only six percent of the cohort identifies as black.2 Black women make up the majority of these students. The picture after law school is not much better.3 I came to law school with my eyes open to these facts but was still surprised the first day I stepped into Chancellor Day Hall. Never deterred and with my parents’ words in mind, I quickly applied myself to forming friendships with my classmates, reading every decision assigned, and chasing the elusive critical legal thinking. But my blackness was still there, palpable in subtle interactions: a professor asking, “Where are you from?” and feeling unsatisfied when you say “Montreal”; the assumption of you being a firstgeneration student as if your parents can’t possibly have multiple degrees; the look of suspicion from your classmates when you say you’ve traveled outside of Canada. Regardless of these interactions, you bite your tongue and carry on. During discussions on racial profiling or the criminal justice system in class, I often sensed the expectation from my instructors and peers to contribute. However, with speaking came the burden of being the “token black person”. Whatever I or other black women in my classes said would be interpreted by my white peers as speaking for the community, failing to acknowledge that the black experience is not monolithic. At the same time, opportunities to speak about race and the black experience outside of classes such as Criminal Justice and Foundations are rare, ignored and relegated to the theme of “critical legal thinking”. My black peers complain—whenever they brought concepts such as intersectionality or their lived experience into their work or class discussions— 1 The black population in Montreal is thirteen percent, the second highest after the greater Toronto area. See “Census Profile, 2016 Census” (2016), online: Statistics Canada <https://www12.statcan.gc.ca/census-recensement/2016/dp-pd/prof/details/page.cfm?Lang=E&Geo1=CMACA&Code1=462&Geo2=PR&Code2=01&Data=Count&SearchText=Montreal&SearchType=Begins&SearchPR=01&TABID=1&B1=All>. 2

These statistics were shared by the Faculty Admissions Office with the BLSA.

3 In Québec, six percent of lawyers are from minority cultural groups, while they represent 13 percent of the population. In Montreal, the picture is no better: eight percent of lawyers for 20 percent of the population. See “Les meilleures pratiques pour promouvoir la diversité ethnoculturelle et l’inclusion” (2020), online: Barreau du Québec <https://www.barreau.qc.ca/media/2545/outil-autoevaluation-meilleures-pratiques-diversite-ethnoculturelle-inclusion. pdf>.

Last year, I embarked on my Course aux stages journey. Again, I often found myself being one of the only black individuals in the room but I took it in stride. Never one to half-ass things, I wore flattering yet conservative outfits, went to almost every cocktail event, had endless coffee chats, and sent an embarrassing number of thank-you emails. I met incredibly interesting people, drank an ungodly amount of wine, and learned a lot about the law profession. During that time, my blackness remained there under the surface. I forced a smile as lawyers boasted about their firm’s diversity while barely having any women present and not one visible minority in attendance. I nodded as one woman bragged about taking only six weeks of maternity leave. Never one to be defeated, I pressed on. The words of my parents echoed in my head: “You have to be twice as good”. Then came my interviews in August during a global pandemic and at the height of the Black Lives Matter movement. As people marched in the streets to denounce the murders of George Floyd and countless others, I spent my days in my room in front of my webcam, smiling. I watched people, who looked just like me, die for no reason other than the colour of their skin. The video of their deaths was seen by millions. At this time, I started getting calls for second interviews. “What do you think of the Black Lives Matter movement?”, my interviewer asked out of nowhere during an interview that had otherwise gone without a hitch. I found myself perplexed. Law school had shown me that race and the black experience— when not deemed irrelevant or ignored—were to be relegated to half-baked classroom discussions. My blackness had never felt so bright. Would this question be asked to my non-black peers? I took a breath and told the truth. In the end, as the world burned, I got a job but funny enough, I didn’t get an offer from that firm. I celebrated in my living room— for less than a day. Being “twice as good” does not leave much room for humanity. I’ve been taught that achieving everything I had dreamed of would feel meaningful, but in the backdrop of profound racial unrest and pervasive inequality, the victory seemed hollow. I felt exhausted and the barriers I had managed to overcome were still there intact and bright as ever. It took a pandemic and a social movement for me to discover that I was not entirely alone. In the middle of the summer of 2020, I was having the frankest conversations about race relations, law school, and the mental toll of it all with my black girlfriends. After years of daily racism, racial gaslighting, microaggressions in and outside the walls of Chancellor Day Hall, we could no longer ignore the noise. Suddenly, white society had decided to care, and many expected us to be the fixers. The light shone bright on us after years of darkness, but for how long? I also reached out to those who came before me, black female lawyers with successful careers who seemed to have made it to the other side. Their experience in law school and later as lawyers was the same: never afforded the chance to fail, being the only black voice in a sea of whiteness, and the loneliness of it all. Funny how the world can change but also stay the same. ** My parents warned me that the oasis of Côtes-des-Neiges could not entirely protect me. Today, there may be more black bodies in law schools, but black voices in and outside law faculties are still not valued. Striving to be “twice as good” without any systemic change takes its toll. Since this summer, there has been a racial reckoning. As co-president of the Black Law Students Association, I have attended many town halls, countless meetings, and coffee chats with the university administration and students’ groups. The discussion has predominantly focused on bringing more black bodies into these halls rather than making law school a more just and equitable place where a plurality of ideas can flourish, and where the difference can be celebrated rather than ignored. Black students must be supported by the administration, and their ideas must be heard. At last, the need to be twice as good could be put to rest.

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A series of interconnected vignettes about missing the prairie of Treaty One Territory. Mum sends me photographs almost every day. Mostly from her morning walks. They show the icy river, with footprints snaking along its contours. The horse barn in the zoo, animals huddled together for warmth. In summer, the glorious prairie sky stretching over our backyard. No one goes somewhere to see the sky. It’s not a tourist attraction, something to brag about when you go home. But when you’ve lived under the wide expanse of a prairie sunset, with no hills to obscure it, frankly nothing compares. The feeling of space. Infinite space. We used to joke that you could see your dog run away for three days. Obviously that’s not as true in Downtown Winnipeg, but marginally more truthful than in the Golden Square Mile. If Quebec’s Laurentian wilderness is a complex maze of rocks, lakes, and mountains, Southwest Manitoba is a gently undulating blanket through which water meanders. The Red River pushes forward, defying even gravity, carving out its rightful place in the landscape. My parents’ home sits in one of the bends of the comparatively timid Assiniboine. The narrow, twisting river that freezes and jams easily in the winter. This year, community members volunteered to create ice paths. I don’t have skates in Montreal. I could go up Mont Royal to Lac des Castors and go round and round, but nothing compares to whizzing down a path as the city unfolds next to you. Starting at the Forks, dodging the curling and hockey rinks, the three year olds clinging onto support frames, people huddled around bonfires with hot chocolate. Then you follow a bend and the people get left behind. It’s just you, the sky, and the gentle scraping of your stride forward. The elaborate limestone steps leading to the Legislature whiz by as you cross under the Osborne bridge into Wolseley.

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I’ve been thinking about what has happened – and what hasn’t happened – in that hallowed building over the past year. Every protest began on its steps, marching down Broadway or - ideally - onto Portage. Round dances at Portage and Main during afternoon rush hour grind the city to a halt. Seeing the Justice 4 Black Lives rally cover the Legislative grounds in June brought me to tears. I remembered when the Women’s March shut down the city for a Sunday. Thousands - far more than expected by organizers. Portage Place Mall completely packed, all three floors. Portage Avenue at a standstill for five blocks, police grumbling under their breaths as they moved barricades and cars around. Marching down Ste-Catherine from Place Gamelins is just as cathartic - but without the added benefit of politicians hearing the chants from inside the walls. I remember working at the Leg and hearing calls of action coming through the windows. Opposition members rushing outside to take a picture and join in. There was always a certain, delicious, awkwardness when legislation was passed while people who had gathered on the steps walked in and observed proceedings. The House would sit and there were protestors and activists in the public gallery, sitting proudly in their union t-shirts. Once, a group of women stood up and began drumming; their voices overwhelmed the speechmaking and posturing below on the floor of the Chamber. I remember how affronted some members were - “how dare they!”, “so rude” - when they streamed out the side doors.

ADRIENNE TESSIER BCL/JD Candidate at McGill Faculty of Law

Legislatures and courts can exist in digital space, certainly, but it’s fairly impossible to protest on Zoom. Now, no one can watch from the gallery as the Health Minister blunders in the Chamber. No one can scream from the steps as the Premier hurriedly walks by. Twitter helps, but it’s not the same. You can’t just click mute on someone when they’re speaking directly to you. Meanwhile, the case counts are going up and Mum and Dad haven’t left the house, really, for about a month now. In April, Winnipeg Police had killed more Indigenous

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people than coronavirus had killed Manitobans. Racism is made deadlier by the impact of coronavirus. Now, in January, Winnipeg’s case counts are virtually non-existent while Northern and Indigenous communities are grappling with containing the virus in a region with one hospital, some scattered nurse stations. Here, we are so preoccupied with our own daily counts that the Western news simply doesn’t get through. Moving East meant that my province disappeared. Manitoba, the small, middlingly poor, postage stamp province with one city and many problems. Racism. Poverty. Deep divisions across a set of train tracks. The kind of place ambitious people leave. Not the province we read about in class, not the cases we read. “You’re from Winnipeg? Oh...nice,” is the response I frequently encounter (not even a “Jets, right?”). A place people have heard of, but know nothing about. I want to tell them of the vibrant activism in the North End, of the incredible artists and entrepreneurs in the Exchange, my old university Downtown – almost to prove that we are something. That we are someplace with people worth caring about. With issues worth caring about. But the most I can usually manage is an awkward “yeah, I moved here for McGill.” I do my best to read news from back home. I’m subscribed to the Free Press. My apartment is covered in art from the WAG and Tiny Feast. Fellow expats and I carefully wrap jars of Honey Dill Sauce in our baggage as we fly away. For Christmas, a dear friend sent some in a package along with a card showing the polar bear enclosure at the zoo, five minutes from home. What is “home”? Is it Montreal, where I live, a place I love, a place I study? Can it be a place I haven’t visited for a year? The virus pushed me over these thresholds of adulthood. 2020 was my first Christmas without my parents, my first year away. But I know what to do when I finally return to Treaty One: find a place where I can watch a prairie sunset.

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Making the World Safe for Poetry

SHAUNA VAN PRAAGH Full Professor at McGill Faculty of Law

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In her introduction to Narrative, Violence, and the Law, Martha Minow wrote in a footnote that Robert Cover “once said that he went to law school to make the world safe for poetry”. I have drawn on the work of Minow and Cover – both remarkable law teachers and scholars – for over three decades. I only discovered the footnote this winter. It helps make sense of why and how we are “going to law school” in this pandemic-marked academic year. At a time when we talk about making the world safe from a virus, it is perhaps more important than ever to ask what we will make it safe for.

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In my contribution to McGill’s “Law Needs Feminism because” project, I said, “feminism brings together poetry, pragmatism and people”. When this year’s Contours editors invited me to write, they asked me to share insights into legal pedagogy in the midst of a global crisis that has made distance a forced feature of teaching and learning. I do so in three parts, as a feminist law professor for whom poetry, pragmatism and people shape the work I do day after day.

In the law of obligations, “remote” means outside the scope of responsibility, or failure to meet the requirements for a successful claim. Remote legal education seemed antithetical to successful teaching and learning. It seemed impossible.

Prologue or Preparation This is just to say I have eaten the plums

“If it’s not impossible, it’s not worth doing”. This was one of Rod Macdonald’s lines, repeated not only by him but by his colleagues, friends, and students at McGill. In the summer of 2020, it felt impossible to prepare and support a course for first year students that would link them to each other and to the material in all of the surprising, challenging, and thought-provoking ways that should come with studying law. Trying to create truly connected legal education even at a distance was exactly what my muchmissed colleague would say was worth doing. This was not the time to pre-record capsules of information on the rules and sources associated with the private law of civil wrongs, or to expect students to piece together presentations and self-learning exercises in isolation. I turned to Harry Potter for help. Why Harry Potter? Much literature, especially that aimed at a young audience, provides guidance and insight with respect to human behaviour and interaction. For the generation of most law students in 2021, the universe of Harry Potter is particularly familiar - a universe of characters, creatures, spells and stories that can help illustrate the rules, relations, norms and issues that make up the substance of civil liability. As their teacher, I could count on them to draw on examples from the books to enrich understanding of risk, responsibility and repair.

that were in the icebox and which you were probably

In the context of the pandemic, however, the substantive justification for turning to Harry Potter was less important than its pedagogical counterpart. I was looking for a way to structure the course, to figure out how 65 students could feel engaged, to ensure opportunities for each student to interact with their teacher and with each other. I found it at Hogwarts School of Witchcraft and Wizardry. I created four “Houses” named after magical creatures (Owl, Unicorn, Phoenix and Hippogriff), and organized the course outline according to a rotating schedule such that members of one House were ‘in the front row’ for each Zoom session. In addition, students in each House were sorted by their third year student House Leaders into three Rooms; roommates were invited to work together to present a brief introduction once a term to a class discussion.

saving for breakfast Forgive me they were delicious so sweet and so cold. - William Carlos Williams I spent the summer of 1995 preparing to teach a first year Torts course at McGill. It was the first time I would take on the responsibility of guiding law students through a foundational piece of their program of legal education. It was the first time I would teach in the Moot Court. I worried about the right mix of lecturing and discussion, and I worried about how to make sure I stuck to the course outline. I worried about whether I needed to adopt and then justify a particular theoretical approach to the material. I worried about how students would react if I started my course with a poem by William Carlos Williams. Twenty-five years later, I spent the summer of 2020 preparing to teach a first year Torts course at McGill. Renamed Extra-contractual Obligations/Torts two decades earlier, the course had become part of my repertoire. The Moot Court had become a place of comfort and even inspiration. I had made the William Carlos Williams poem, “This is just to say”, my signature opener to a foundational course focused on interpersonal relations and interactions. Despite all of that, I spent the summer worrying. Shifting to teaching and learning at a distance, over Zoom, in a virtual classroom, shook up everything I had spent 25 years building as a teacher of first year law students. My first reaction to the fact that our first year law students would learn in remote mode was that it was simply unimaginable. Sharing of actual space, participation in community, and conversations with peers are crucial to immersion in legal education.

This was my blueprint for teaching a course that I knew inside and out but that now felt so different. The fiction and magic of children’s books could help lighten what might otherwise feel like a heavy and even sad experience of learning at a distance. The House system could serve to underscore the importance of community and belonging for first year law students. Ideally participants in the course would feel like they were going through it together. They would be reminded of the importance of imagination and creativity, and they would each take onto their own shoulders the responsibility of making the course a success. Before the pandemic school year began, a significant challenge materialized to the project of weaving Harry Potter into the teaching and learning of law. Over the summer, Harry’s creator, J.K. Rowling, made widely publicized contributions to complicated and continuing conversations about youth and transgender identity. Her stance on young trans individuals, and on trans people more generally, was not only controversial but experienced by many of her readers as deeply disappointing, hurtful, and indeed a betrayal. I decided not to turn this into a reason to avoid reference to her fiction. Instead, at the same time I introduced the substance and format of the course in early September, I invited students to pay close attention to the ways in which young people were reacting to Rowling’s comments. As their professor, I hoped that awareness of Rowling’s views would serve as a reminder to pay attention to the depth and complexity of sources. In reading cases, Codes, critical commentary, or works of literature, we reflect on how and why we read, mechanisms of interpretation, the complicated and sometimes disturbing significance of author, and the role and relevance of voices and stories in the development of legal argument and knowledge.

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Practice and People

than usual - their individual coping methods. Not one of them in the winter of 2021 said that remote learning is just fine. Not one said this is easy, ideal or convenient. Every single one was yearning to “come to law school”.

Memoriam I have nothing to give you, nothing to carry, Some words to make me less afraid, to say You gave me this. … Nothing to carry, Some stones to fill our pockets, To give weight to what we have. -

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Anne Michaels

For many years, I have promised my first year students that it will be worth it to come to class. I explicitly undertake to ensure that what goes on in the classroom cannot be replicated on a screen, and watched on a tablet at home. I have never typed up lecture notes, instead pushing myself to read for class every year, and to allow new examples brought by students to infuse discussion. This year, with everything on screen, I had to make a different promise. I had to make it worthwhile to come together according to the class schedule, and I had to find a way to make the entire learning experience feel as real as possible. Perhaps paradoxically, the fictional framework of the course helped do exactly that. In-person learning is always hard. In turn exhausting, exhilarating, devastating, disappointing, it should keep us on the edge of our seats, trying to follow, to make sense of complicated notions, to practice talking through the complexities with our neighbours. The often-repeated dichotomy between the law classroom and “real life” is simplistic and unhelpful. Instead, everything in the classroom is real life for its participants, and examples brought from lived experience are core to academic and critical conversations. How do we try to hold onto what is hard but rewarding about learning in a shared space? How do we stay connected to real life from our computer screens? On my computer at my Faculty of Law office, from which I teach at my standing desk with my bookshelves behind me, I have taped little messages to myself. “Connection not perfection, knowledge over information, people over stuff, less is more”. They are reminders of what matters, of the importance of dynamic back-andforth between professor and students, of the intersecting rhythms of learning and living. One of the things I have done to “fill our pockets” and “give weight to what we have” is to record short conversations about selected issues in the private law of civil wrongs grappled with by first year students. Some of the conversations have been with scholars or judges, but the most rewarding have been those with past students. They illustrate the intergenerational character of legal education, the ways in which the experiences of every first year class overlap with those of their predecessors, and the unique insights and interests of each individual who has spent time in a law classroom. This year’s first year students heard their counterparts from past years talk about what they found frustrating or fascinating, surprising or reassuring. When past students shared words of encouragement and advice, they invited the 2020-2021 cohort into a community that goes way beyond a list of Zoom participants. In the winter of every year, I try to meet all of my first-year students. There are often long lines out the door and down the hall. This year turned out to be no different, except for the fact that the one-on-one meetings were virtual. As usual, I discovered a remarkable diversity of individual paths to the study of law, as well as a wide range of learning styles and levels of confidence. One after the next, first year students amaze and inspire with their refreshing curiosity, deep compassion, and original ideas. They come prepared to share their questions, their uncertainties, and – this year, even more

Postscript - Poetry The Hill We Climb When day comes we step out of the shade, aflame and unafraid The new dawn blooms as we free it For there is always light, if only we’re brave enough to see it If only we’re brave enough to be it -

Amanda Gorman

As a law professor, I am always in learning mode. But I didn’t expect, at this point in my career, to re-live the anxiety that comes with being a first-time teacher – the sense of being subjected to intense critical scrutiny, the sleeplessness, the tears that can come after a less-than-perfect class. In an email message dated early February, I wrote, “I am just doing my best to stay somewhat motivated and positive for my students – thank goodness I have to answer to them week after week.” What does it mean to go to law school - or never to leave law school, which is what being a law professor is all about – to make the world safe for poetry? If Amanda Gorman, the 22- year-old American youth poet laureate, can express herself with confidence, vision, and understanding of her abilities and responsibilities, then her peers who have chosen to study law can do so too. But we all have work to do to make the law classroom so valuable that remote learning cannot replace it. The “impossible” task worth doing is that of sustaining classrooms characterized by complexity rather than certainty, creativity rather than clarity, risk-taking rather than risk-avoidance, questions rather than answers. I finish with the observation that my first year law course in Extracontractual Obligations/Torts, the focus of these reflections, is never fully “my” course. If I have succeeded at my job, there should be 65 unique courses by April, each developed in the hands of an individual student, each holding the notions of obligation, injury, and repair in a distinctive constellation. This may sound like a vision custom-made for learning in isolation. But the 65 versions of the course depend on shared place and space. This year, they depend on finding that shared place and space at a distance. All 65 should be marked by this particular law faculty and by this particular student community. They are shaped by the constant movement and rhythm of conversations. As students figure out their own courses, as they plot their own paths across their legal education, they do indeed make the world safe for poetry – for its sound and cadence, its carefully chosen vocabulary, its images and force, its tone and power. In turn, and even in a pandemic, poetry calls on each and every one of us to create, to care, and finally to climb.

contours Volume IX

GRAPHIC DESIGN BY ART VIJAYARATNAM

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 nonbinary individuals’ voices and an invitation for us all to start a conversation.

MCGILL UNIVERSIT Y

FACULTÉ DE DROIT