McGill Pre-Law Review 2019 by The McGill Pre-Law Students' Society

A McGill Pre-Law Studentsâ&#x20AC;&#x2122; Society Publication | 2019

THE PRE-LAW REVIEW

The Pre-Law Review

COPYRIGHT The McGill Pre-Law Students’ Society recognizes that McGill University is situated on the unceded territory of the Kanien’keha:ka, and is located on land which has long served as a site of meeting and exchange amongst Indigenous peoples, including the Haudenosaunee and Anishinabeg nations. We further stand in solidarity with indigenous students here at the university. Copyright © The Pre-Law Review: Journal of the McGill Pre-Law Students’ Society, McGill University, Montreal, Canada, 2019. This journal is jointly funded by: The McGill Pre-Law Students’ Society (https://www.mcgillprelaw.ca) The Students’ Society of McGill University (http://ssmu.mcgill.ca) Printed and bound by Solutions Rubiks Inc. All declarations of fact and assertions of opinion featured in the articles are solely those of the respective authors. They do not necessarily represent the views of the Editorial Board, Advisory Board, the McGill Pre-Law Students’ Society, Students’ Society of McGill University, McGill University, or its faculty and administration. Cover Photography by Jennifer Chan

Note from the Editor-in-Chief

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This past year I have once again had the privilege of leading the annual development and publication of the Pre-Law Review, which serves as a unique forum to showcase a collection of insightful academic articles from McGill undergraduate students coming from a variety of faculties and backgrounds. Each article featured in this year’s edition offers an enriching perspective on a topic pertaining to law and the legal field, filled with intricacies and nuances to foster debate and inspire discussion. Law has long captivated my interest, though this curiosity has manifested in different ways as I have come to discover in greater depth its complexity and many pervasive facets. What I find fascinating is the socially constructed legitimacy with which we endow the rule of law – and thus the laws empowered by this principle – and how its influence profoundly shapes lived experiences. I am specifically intrigued by the ways in which we interpret and apply the law, the ways in which we govern ourselves as a collective, how these systems influence our behaviour, and how they produce and reinforce structural injustices. Developing this journal has been a passion project of mine, as I am deeply invested in the intricate multidimensionality of law and its intersecting areas of research. This year’s publication would not have been possible without the collective hard work and dedication of the associate editors and graphic designer who contributed to its production. Thank you for your outstanding effort and commitment to making this publication something to be proud of. I am immensely grateful to have been a part of this team. Further, I must express my appreciation to the authors, for it is your intelligent work that serves as the foundation from which we are able to build this journal. Thank you for sharing it with us. Sincerely, Bella Harvey Editor-in-Chief

Our Team EDITOR-IN-CHIEF Bella Harvey

EDITORS Pauline Crepy Sophia Dilworth Chris Fitzpatrick Ananda Kimm-Drapeau Katia Lo Innes Heather Lawson Laura Millo Olivia Ramos Leah Smith Alexandre Vachon

GRAPHIC DESIGNER Cassidy Barnes

Table of Contents Indiaâ&#x20AC;&#x2122;s Inclusive Growth

Labour Policies to Foster Human Capital Victoria Kalisky

Urban Population Removals in South Africa

Analysis of Provincial Sexual Misconduct Policies

Gentrification and the Legacy of Apartheid Anna de Waal

Calvin Trottier-Chi

The Illegal Administration of Abortions in America

Jamie Cowan

Whoâ&#x20AC;&#x2122;s Being Silenced?

An Analysis of the North American Pornography Legislation Debate Johanna Cline

The Evolution of Standing in the Canadian Judicial System

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Madeleine Kausel

Climbing Over Walls

Racial Discrimination in America

Mexican Temporary Foreign Workers in Canada Sophie Y. Zhao An Analysis of the Implementation of Article 5(a) of the Convention on the Elimination of All Forms of Racial Discrimination Helen Alexandra Hayes

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Indiaâ&#x20AC;&#x2122;s Inclusive Growth

Labour Policies to Foster Human Capital

Victoria Kalisky

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Abstract There is an intensive debate surrounding the effectiveness of India’s labour policies in fostering economic growth and more inclusive labour markets. Despite India’s growing manufacturing industry and expanding labour market, the manufacturing industry largely excludes low-skilled workers. The academic study of India’s labour laws has generally been limited to size-based labour regulations. A case study of India’s Industrial Disputes Act of 1947, the critical piece of legislation required to study the relationship between size-based labour regulations and low-skilled employment, will suggest that a comprehensive overview of labour policies is needed to address the balance of power between capital and labour. In particular, an analysis of state-level reforms in West Banghal and Andhra Pradesh will suggest that increased bargaining power harms workers by generating incentives for firms to invest in informal labour. The paper will recommend a broader simplification of India’s labour laws to deter the corrupt enforcement of size-based labour regulations, as well as reforms which provide flexibility to employers while maintaining adequate income security for labourers.

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ne of the critical challenges of development economics is to identify legislation that hinders economic growth in emerging markets.1 This research paper will examine the impact of India’s labour policies in fostering economic growth and more inclusive labour markets. Despite India’s growing manufacturing industry and expanding labour market, low-skilled workers continue to be alienated. Cyclical and structural factors do not explain India’s high levels of unemployment among low-skilled workers. Instead, policy critics attribute the gap between India’s labour supply and demand to inefficient labour policies. In particular, bureaucratic procedures involved in hiring and maintaining workers impose costs on employers which deter the employment of low-skilled labourers and incentivize employers to seek out informal employment. The debate surrounding the effectiveness of India’s labour regulations in its manufacturing sector prompted the government to launch the world’s first ‘National Human Resource Development’ (NHRD) department aimed at developing labour policies which promote economic growth among low-skilled workers. In a similar effort, the Institute of Economic Growth (IEG), an autonomous body under the Government of India, launched a research chapter exclusively aimed at investigating the relationship between labour law, social capital, and income mobility. Despite these efforts, Indian policy-makers continue to struggle with a misallocation of labourers. India’s failure to confront its labour policy challenges has motivated explanations for how labour laws impact the development of human capital within a low-skilled labour force. This research paper will investigate this impact at the intersection of development economics and law-making. This research paper will begin with a literature review of academic efforts to address India’s labour policy challenges. The following

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section will discuss the qualitative case study design employed to investigate a key piece of India’s labour legislation. The last stage of the paper will examine the empirical results of India’s labour law reforms and their implications for future labour policy amendments.

Literature Review In response to the growth of India’s manufacturing industry, the government developed three legal systems to protect labourers: employment law, collective relations law, and social security law. The literature review will address how and why India’s employment laws impact formal and informal labour markets. This section offers two fundamental scholarship approaches to the study of India’s labour regulations; one by Amirapu and Getcher, and one from Besley and Burgess. Despite criticisms from India’s manufacturing sphere and observed misallocations of low-skilled labourers, the academic study of India’s labour laws has generally been limited to size-based labour regulations. Regulations of this kind predominantly affect larger establishments, those employing more than one hundred workers, by imposing substantially greater regulatory obligations on them. These administrative burdens include stricter safety standards (under The Factories Act 14) and social security taxes (under The Employees’ State Insurance Act and The Labour Laws Act).2 Economists have conceptualized the impacts of size-based labour regulations through two competing hypotheses which examine the costs of corruption and how legislation allocates costs and benefits among workers and employers. Critics contest the significance of labour policies in explaining India’s unemployment levels arguing that; “the laws as written are rarely enforced so that in practice firms are effectively unconstrained.”3 The emergence of Amirapu and Getcher’s working study undermines

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these arguments by hypothesizing that the corrupt enforcement of labour laws impose extra costs on employers which impact formal employment levels. According to the study, size-based labour regulations provide an incentive for inspectors to demand higher rents from firms, thus making larger firms more vulnerable to exploitation by inspectors through harassment bribes.14 The regulatory burdens associated with sized based labour legislation produces ripe conditions for exploitative practices which can incentivize employers to pursue informal employment. Alternatively, Besley and Burgess adopt a stakeholder approach to Indiaâ&#x20AC;&#x2122;s labour laws by examining how regulations distribute costs and benefits among workers and employers. They classify state-level amendments of Indiaâ&#x20AC;&#x2122;s Industrial Disputes Act (IDA) based on their propensity to benefit workers or employers. The study claims that labour laws which benefit workers lead to reduced formal employment levels and more significant investment in informal employment.5 A synthesis of these two pieces suggests that increased regulatory burdens on firms, whether through corrupt or lawful enforcement, hinder low-skilled labour inclusion. Therefore, this research paper will investigate the hypothesis that labour policies aimed at decreasing administrative costs and burdens for employers will increase the employment of low-skilled workers. This paper will examine the impact of state-level labour policy modifications on low-skilled labourers within respective Indian states. The hypothesis might contribute to the knowledge of Indiaâ&#x20AC;&#x2122;s broader economic development challenge of producing labour laws that promote labour inclusiveness in the manufacturing industry.

Method and Case Design

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Through the case study method, this paper will investigate India’s Industrial Disputes Act of 1947 (IDA); the critical piece of legislation required to study the relationship between labour regulations and lowskilled employment. The qualitative and inductive nature of the case study approach permits an in-depth examination of the complex contextual details associated with the codification and implications of the IDA without imposing preconceived constraints surrounding its impacts. The process tracing method will illustrate the causal pathways linking India’s historical, political context of independence and industrial development to emerging legal systems which subsequently impact labour employment levels. The decision to adopt a qualitative approach rather than a quantitative one lends itself to the challenges implicit in operationalizing labour policies. However, a quantitative approach would face difficulties achieving high external validity. The strong incentives for corruption involved in the enforcement of sized-based labour regulations suggest that an economic census would not accurately reflect formal employment levels. There is a legitimate incentive for employers to misreport the size of firms to avoid bureaucratic regulations and for enumerators to misrepresent the data to avoid the extra paperwork required for firms with over one hundred employees. Consequently, the challenge to reform India’s labour laws is compounded by the endogeneity problems and selection biases resulting from employer incentives to report inaccurate census data. Ironically, administrative challenges associated with labour regulations prevents empirically-driven policy reforms.

Case Study: India’s Industrial Disputes Act of 1947 The IDA was designed in the context of increased investments to India’s manufacturing industries to protect workers from employer exploita-

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tion. The legislation prescribes the “conciliation, arbitration, and adjudication procedures to be followed in the case of an industrial dispute.”6 Following the enactment of India’s constitution after achieving independence in 1947, its federal democracy granted legislative jurisdiction of labour legislation to both federal and state governments.7 Consequently, 113 state-level amendments were enacted to the provisions of the IDA. Following the state-level reforms, Indian manufacturing outputs increased by 3.3% between 1958 and 1992.8 However, observed variations in manufacturing growths across different Indian states raise questions about the economic and social significance of labour reforms. The data collected by Besley and Burgess classifies state-level amendments as either benefiting labourers or employers. This paper will investigate this question through the states of West Banghal and Andhra Pradesh because they represent extreme cases in the data of benefiting workers or employers. The interpretive nature of codifying amendments based on stakeholder costs and benefits calls into question the reliability of the data. However, the direction of ‘pro-worker’ and ‘pro-employer’ is quite straightforward in this case.9 The following is an example of a 1980 state amendment extending severance benefits in West-Bengal, which Besley and Burgess characterized as a ‘pro-worker’ reform: “The limit of 45 days for workers receiving 50% of their wages upon being laid off (if they worked for more than a year) is removed.”10 The following is an example of a 1987 ‘pro-employer’ state amendment in Andhra Pradesh establishing limitations to labour mobilization: If in the opinion of the state government it is necessary or expedient for securing the public safety or the maintenance of public order or services or supplies essential to the life of the community or for maintaining employment or industrial peace in the industrial

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establishment it may issue an order which (i) requires employers and workers to observe the terms and conditions of an order and (ii) prohibits strikes and lockouts in connection with any industrial dispute.11 From this perspective, state amendments were characterized as benefiting employer or worker based on their tendency to obstruct or promote production.

Empirical Results West Bengal’s labour reforms resulted in output per capita decreases of 1.5% per annum.12 Conversely, Andhra Pradesh experienced a 6% increase of outputs per capita per annum.13 These empirical findings suggest that labour reforms which benefit workers lead to reduced investment in manufacturing, lower formal employment, and an increase in informal employment.14 West Bengal’s 1979 majority election of the ‘Left Front,’ known for policies in support of labour unionization, influenced its disproportionally large number of ‘pro-worker’ reforms. The outcomes of the Left Front’s labour policy reforms were counter-intuitive to their objectives of protecting labourers. Their “attempts to address the balance of power between capital and labour by providing increased bargaining power to workers led firms to invest in informal labour.”15 These findings are consistent with the hypothesis of the research paper because they suggest that labour regulations aimed at reducing costs for employers – at the expense of protecting workers – will result in higher levels of lowskilled labour employment.

Conclusion and Implications for India’s Labour Policy Reforms The evidence demonstrates that stricter labour regulations hurt em-

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ployment levels. The study is limited in its scope to explain employment levels experienced by smaller firms, which do not reach the threshold of one hundred employees. The limited examination of manufacturing outputs to larger businesses suggests the possibility of exogenous factors which might equally affect the growth of smaller firms. These factors could include poor credit, or additional bureaucratic regulations.1 A future case study approach could also analyze the output per capita of small firms that are not affected by the IDA to assess and further isolate the causal significance of size-based labour regulations. This may minimize the effect of these exogenous factors and increase the scope and generalizability of the study. A policy proposal regarding India’s labour laws should consider these findings and develop labour policies that combine flexible labour contracts - like hiring and firing workers – with fair unemployment compensation. The Rajasthan government, for example, has pursued multiple “pro-employer” amendments to the IDA to incentivize employers to hire more workers through the simplification of sized-based regulations.16 For instance, an amendment to Section 25K of the IDA reduces red tape by increasing the cap for lay-off regulations from a workforce of one hundred to three hundred employees.17 Additionally, the government limited the period that employer and employee disputes can be raised for adjudication to “reduce the volume of litigation and discourage filing of fictitious claims,”18 as well as increased the threshold for Union registration.19 What’s more, India’s Ministry of Labour and Employment recently published a Labour Code draft aimed at simplifying the bureaucratic procedures involved in the compliance of labour laws. Although these steps do not directly solve India’s labour policy challenges, the simplification of labour procedures in a “pro-employer” direction might reduce incentives for owners and enumerators to mis-

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report the size of firms in an economic census. These recommendations might lead to viable quantitative approaches to the study of Indiaâ&#x20AC;&#x2122;s labour policies such as the multi-variable macro-economic comparative study suggested above. Qualitative approaches to the study of Indiaâ&#x20AC;&#x2122;s labour laws have successfully paved the way for alternate, quantitative approaches to assess the effectiveness of Indiaâ&#x20AC;&#x2122;s economic policies in developing human capital among low-skilled labourers.

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Notes 1

Besley, Timothy and Burgess, Robin. “Can Labour Regulation Hinder Economic Performance? Evidence from India.” The Quarterly Journal of Economics, February 2004, 91-130. 2 Amirapu, Amrit and Gechter, Michael. “Indian Labour Regulations and the Cost of Corruption: Evidence from the Firm Size Distribution.” November 2014, 2-44, 6. 3

Ibid., 2.

Ibid., 4.

Besley and Brugess, “Can Labour Regulation Hinder Economic Performance?” 4.

Ibid., 6.

Ibid., 5.

Djankov, Simeon. “Employment Laws in Developing Countries.” Journal of Comparative Economics 37 no. 1. March 2009, 3-13, 4. 9

Besley and Brugess. “Can Labour Regulation Hinder Economic Performance?” 6.

Ibid., 7.

Ibid., 6.

Djankov. “Employment Laws in Developing Countries,” 4.

Ibid., 4.

Besley and Brugess. “Can Labour Regulation Hinder Economic Performance?” 1.

Ibid., 2.

Bardhan, Pranab. “The labour reform myth.” The Indian Express. August 23, 2014, https://indianexpress.com/article/opinion/editorials/the-labour-reform-myth/. 17 “Amendments to Industrial Disputes Act, 1947,” Rajasthan Labour Law Reforms (January 15), http://easeofdoingbusiness.org/sites/default/files/resources/rajasthan-labour-reform.pdf. 18

Ibid.

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Urban Population Removals in South Africa

Gentrification and the Legacy of Apartheid

Anna de Waal

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Abstract Reshaping historically contested urban areas into inclusive landscapes remains one of South Africa’s most imperative contemporary development challenges. Spatial inequalities deriving from apartheid-era policies of exclusion from formal access to land are salient in situations where poor or marginalized groups are forcibly evicted from urban informal settlements to peripheral areas.1 Land tenure remains highly contested as government narratives, interest groups, NGOs, and affected populations advocate competing narratives surrounding contemporary gentrification processes. The discourse – particularly surrounding the urban poor in Cape Town and Johannesburg – perpetuates a representation of these communities as ‘abnormalities’ or problems that may be solved through evictions.2 Such representations influence government actions and policies, bearing severe consequences for vulnerable populations that continue to be affected by legacies of dispossession. Tenure rights for the urban poor are symbolic of historical injustices that are perpetuated by market forces.

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he displacement of the urban poor in South Africa is the result of a longstanding discourse that characterizes these communities as problems that can be resolved by evicting them. This characterization of the urban poor is emblematic of the history of injustices and prejudices perpetuated by government policies dating back to the apartheid era. The forced removal of black South Africans under apartheid policies such as the Group Areas Act of 1950 left the vast majority of land ownership in the hands of a white minority, ostensibly to minimize friction between members of different racial groups living and working in urban areas.3 The creation of racially exclusive areas for designated ‘population groups’ was justified by the apartheid state under the guise of economic development and health improvements to urban areas; such forced evictions have left an indelible mark on South Africa’s urban landscape. On the basis of more diverse ideological justifications and narratives, comparable evictions continue to be implemented on a daily basis in post-apartheid South Africa by private landowners, companies, and various spheres of government.4 Du Plessis highlights how urban evictions, increasingly justified by the government under the pretenses of ‘public interest’ and ‘development,’ contribute to severe physical and mental trauma, homelessness, loss of jobs, education, and the destruction of survival networks, among other consequences. An examination of contemporary gentrification requires a greater emphasis on the role of market forces in driving evictions. In contrast to the direct and visibly violent forced evictions during the apartheid, market-related evictions occur more frequently, over a more protracted length of time, and differ in motivation and procedure from the large-scale evictions historically associated with South Africa.5 Market evictions encompass situations where displacements are the consequences of development aimed at

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making land use more profitable; yet in cases of little or no consultation with the marginalized groups affected, it is not difficult to draw striking parallels between apartheid-era removals and those occurring today.6 Contemporary gentrification in South Africa is a salient example of such market-driven change, as informal settlements are evicted for the supposed ‘development’ of land for higher-profit use. In an economic climate characterized by increasing globalization, major cities including Cape Town and Johannesburg are increasingly gentrified at the expense of vulnerable populations to conform to an image of a ‘developed’ South Africa.7 Fleming emphasizes the importance of apprehending South Africa’s colonial past in an examination of gentrification, acknowledging the ways in which the advantages of certain individuals can be linked to the disadvantages of others through the persistence and continuities of historical spatial constructs.8 A discourse that constructs the poor into objects of knowledge and management bears profound socio-economic consequences, such as underprivileged groups depicted as a “social problem requiring new ways of intervention in society.”9 This discourse is perpetuated through the language used by government officials to justify urban evictions, as it is often highly technical and invariably connected to notions of ‘public interest.’ The settlements constructed by South Africa’s urban poor may be defined as ‘informal settlements’ as they are not created by formal government processes, and often provide low-quality housing or poor basic services for residents. By describing these settlements as informal, the government is able to argue that they are only ‘temporary’ and inadequate ways to meet housing needs, thus sanctioning their removal.10 Just as marginalized groups were racially problematized by official discourse under the apartheid regime, they are now similarly represented as ‘abnormalities’ to be treated or fixed.11 A consequent

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disjuncture exists between the South African government’s contemporary policy aims of inclusive postcolonial spatial integration, and its tendency to condone or ignore market-led urban evictions. Hall and Hirsch examine the market forces supported by government discourse as a power of exclusion by its limitation of access through price and through the creation of incentives to lay more individualized claims to land. Government narratives further promote gentrification as “economically in the best interest of South Africa.”12 Furthermore, ‘beautification’ campaigns and eviction of the urban poor contribute to the neoliberal image of a modern city. Du Plessis criticizes such justification on behalf of the government: “the formulations used in speeches, official website pages and presentations are, frequently, rhetorical and compelling, with the implication that questions, criticism or resistance to the evictions amount to disloyalty to ideals attached to the ‘greater good’ of Johannesburg.”13 Although gentrification processes are backed by an official discourse of civic order and national development, such government narratives fail to acknowledge the marginalized voices of communities affected by evictions. While gentrification in theory supposedly benefits the economic climate of South Africa as a whole, weak institutions and widespread corruption in spheres of government means particular elite groups or individuals will profit disproportionately from land use following evictions.14 The consequences of urban evictions for poor families are severe and traumatic as they lose their established investments and belongings, community support systems, and are likely to fall into debt.15 As marginalized groups are further pushed to the periphery by evictions, individuals are distanced from adequate health care, education, and employment opportunities, as well as exposed to situations of alienation and conflict that may increase crime and vio-

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lence.16 NGOs, including the Centre on Housing Rights and Evictions (COHRE), and groups living in urban settlements often advocate for policies that preserve community structures and provide secure tenure against gentrifying market forces. Policy-makers and developers frequently fail to consult with affected populations in eviction decisions, or consider alternative – although less immediately profitable – courses of actions such as collaborative investment models.17 Resources presently expended in eviction conflicts or tenure disputes could be more effectively mobilized in a constructive engagement with city planners and development groups to implement creative solutions to housing needs that also take into account the broader development needs of urban centers.18 Keatinge further examines the disproportionate effects of gentrification upon the most vulnerable populations of society, and how power structures perpetuated by developers and investors facilitate a process of ‘othering’ in the name of development.19 By representing informal settlements as a problem requiring particular action, the official discourse demonstrates less concern for inequality or the power structures that perpetuate systemic exploitation, and more for the optics of poverty in urban centers pursuing an image of development and modernity. Section 26 of the South African Constitution states, “Everyone has the right to have access to adequate housing.”20 It goes on to posit that the state is responsible for enabling this right, and that a person cannot be evicted without a court order. However, corruption and weak institutions act as a barrier to the successful enforcement of such legislation; in practice, it only applies to the state and does not prevent private owners from using security companies to evict illegal occupants.21 This vulnerability at the hands of powerful developers and interest groups determines whose voices are heard in tenure disputes, acting to shape the ways affected communities are perceived and their

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position within South African society. Escobar suggests, “objects of analysis do not occur as a natural phenomenon, but are partially constructed by the discourse that describes them.”22 A productive incorporation of the experiences of those facing eviction into a larger developmental narrative bears great significance for the reshaping of South Africa’s national identity through spatial interactions. South Africa’s collective identity under the apartheid regime was defined by division, exclusion, and inequality. To foster inclusion and a wider conception of justice, its present-day exclusion of the voices of those marginalized through evictions must be re-examined and detached from its colonial history. Evictions resulting from gentrification must be understood as the opposite of development; unequal power relations between poor communities and the government or development interest groups exploit the most vulnerable populations of South African society and reproduce cycles of poverty. As race was an organizing concept for the justification of the ‘development’ discourse of the apartheid government, poverty has become an organizing concept in the discourse of a South African government seeking rapid modernization. The problematization of particular populations to justify their movement and control is consequently of particular concern due to its semblance of apartheid-era discourse. Representations by powerful actors continue to shape perceptions of affected communities, and these processes, in turn, play a productive role in the reconstitution of South African identity.23 Despite the post-apartheid government’s professed objectives of reversing spatial inequalities, official discourse and government policies have consistently failed to acknowledge the voices of the marginalized urban poor. The narratives and experiences of affected communities must be addressed to resolve the spatial consequences of evictions

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and promote integrated urban communities, where marginalized populations are stakeholders in solutions to tenure disputes. Through the reconciliation of the spatial injustices and involuntary dispossessions resulting from market-driven gentrification, South Africa may realize an inclusive model of development.

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Notes 1

Strauss, M., and Liebenberg, S. “Contested Spaces: Housing Rights and Evictions Law in Post-Apartheid South Africa.” Planning Theory vol 13, no. 4 (2014): p. 428-448. 2 Fleming, Andrew. “Making a Place for the Rich? Urban Poor Evictions and Gentrification in Woodstock, South Africa.” Academia.edu: 4, 2011. 3 Pirie, Gordon H. “Urban Population Removals in South Africa.” Geographical Association vol 68, no. 4 (1983): p. 347-349. 4 Du Plessis, Jean. “The growing problem of forced evictions and the crucial importance of community-based, locally appropriate alternatives.” Environment and Urbanization vol 17, no. 1 (2005): 123-134. 5 Fleming, “Making a Place for the Rich? Urban Poor Evictions and Gentrification in Woodstock, South Africa.” 6

Fox, John., and Eisele, Kristina., “Alternatives to the Destruction of Urban Poor Communities.” Training Facilitator’s Guide: Housing the poor in African Cities, Quick Guides for Policy Makers. UN Habitat, 2011. 7 Reid, Skyler. “In Johannesburg, Once Known for Apartheid, Gentrification Means Displacement for the Poor.” International Business Times, 2014. 8

Fleming, “Making a Place for the Rich? Urban Poor Evictions and Gentrification in Woodstock, South Africa.” 9

Escobar, Arturo., and Cooper, F., and Packard R. “Anthropology and Its Evil Twin: ‘Development’ in the Constitution of a Discipline.” International Development and the Social Sciences: Essays in the History and Politics of Knowledge. University of California Press, 1995. 10

Fox and Eisele, “Alternatives to the Destruction of Urban Poor Communities.”

Strauss and Liebenberg, “Contested Spaces: Housing Rights and Evictions Law in Post-Apartheid South Africa.” 12

Hall, D., Hirsch, P. et al. Powers of Exclusion: Land Dilemmas in Southeast Asia. University of Hawaii Press, 2011. 13

Du Plessis, “The Growing Problem of Forced Evictions and the Crucial Importance of Community-Based, Locally Appropriate Alternatives.” 14

Huchzermeyer, Marie, and Karam, Aly. Informal Settlements. UCT Press, 2006.

Du Plessis, “The Growing Problem of Forced Evictions and the Crucial Importance of Community-Based, Locally Appropriate Alternatives.” 16

Fox and Eisele, “Alternatives to the Destruction of Urban Poor Communities.”

Centre on Housing Rights and Evictions. “Any Room for the Poor? Forced Evictions in Johannesburg, South Africa.” Johannesburg: COHRE. 2005. https://docs.escr-net.org/usr_ doc/COHRE_Johannesburg_FFM_high_res.pdf. Constitution of the Republic of South Africa. 18

Fox and Eisele, “Alternatives to the Destruction of Urban Poor Communities.”

Keatinge, Brenna. “A ‘Bedford Falls’ kind of place: Neighbourhood branding and com-

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mercial revitalization in processes of gentrification in Toronto, Ontario”. Urban Studies vol 53, no. 5 (2016): p. 867-883. 20

Constitution of the Republic of South Africa.

Reid, “In Johannesburg, Once Known for Apartheid, Gentrification Means Displacement for the Poor.” 22 Escobar, Cooper, Packard, “Anthropology and Its Evil Twin: ‘Development’ in the Constitution of a Discipline.” 23 Besteman, Catherine. “Promised Land”. African Conflict and Peacebuilding Review 1 Vol 1, no.1 (2011): 171-174.

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Analysis of Provincial Sexual Misconduct Policies Calvin Trottier-Chi

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Abstract For many, post-secondary education is a formative stage, full of potential and discovery. Unfortunately, this time also comes with a particularly salient risk of sexual violence; most students are young, isolation is commonplace, and consumption of drugs and alcohol is prevalent.1 Survivors are often left afflicted with chronic physical and psychological conditions, resulting in negative perceptions of their capabilities and roles in society. Though campuses are espoused as the grounds for the best and brightest, ramifications of sexual violence occurring within the university context creates barriers for success.2 The recent ratification of post-secondary sexual violence policies by Canadian provincial governments provides an opportunity to gauge the future of legal protections and whether students can expect campuses to become safer spaces. The failure of Canadian universities and provinces to frame sexual violence as a consequence of rape culture leaves much to be desired. Continued emphasis on the criminal justice system as a main channel of due process makes it difficult for survivors to achieve closure and fails to address societal problems. Therefore, there is a need for community-based restorative justice and advocacy to foster substantive change.

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Failure of Traditional Approaches

ithin the Canadian criminal justice system, sexual violence is typically charged as harassment, discrimination, or sexual assault – more ubiquitously known as assault. Section 265(1) of the Canadian Criminal Code outlines that assault is present in any situation when force is applied without consent or through coercion. While the language appears similar to sexual violence, the criminal justice system itself is alienating. The hurdles for a conviction consequently fails survivors, as a lack of consent must be proven beyond reasonable doubt and the adversarial nature of criminal hearings may be triggering.3 Moreover, survivors may be unprepared for the rigors of the system, as traumatic experiences can affect memory recollection, which often serves as the cornerstone of a trial.4 Furthermore, the fear of encountering harassers has prompted survivors to drop out of class or school entirely.5 Cases may also be dropped by police before ever reaching court.6 In 2017, 14 percent of sexual assault cases in Canada were labelled ‘unfounded’ with no further legal action taken.7 This is discrepant with 2018 figures from The Globe and Mail indicating only 2 to 8 percent of sexual assault reports to be false.8 Sexual assault cases bear the unfortunate duality of being one of the least likely crimes to be reported and the most likely to be declared unfounded.9 Given the inefficiencies of the criminal justice system, post-secondary institutions have a responsibility to respond to sexual violence. Unfortunately¸ there tend to be deficiencies and a lack of faith in independent systems. A 1999 study at the University of Waterloo found that 16.8 percent of the 77 survivors they surveyed had reported their incident and, of those, only 15 percent pursued their cases.10 The most common explanations for non-reporting were fear of reprisal or dissat-

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isfaction with the current channels. As of 2015, fewer than 10 Canadian universities examined had policies that specifically address sexual assault. Of those, most policies were scattered in a “patchwork-like” style, with few making data publicly accessible. Moving forward to 2017, a study of 14 Canadian post-secondary institutions found that nine prohibited complainants from speaking about their cases, three explicitly mentioned rape culture, two placed a one-year time limit on filing a complaint, and only one had an indiscriminate stance on drugs and alcohol use.11

Through a Developmental Gendered Lens: Restorative Justice and Advocacy To understand how to improve responses to sexual violence, the meaning of “sexual violence” must be deconstructed. In being satisfied once the perpetrator is punished, the criminal justice system fails to recognize the extent to which sexual violence is interrelated with gendered subjugation of identity and behaviour. This overlooks the corrupting force of sexual violence for the entire community, as it is not only an attack on an individual but on the very idea of what it means to be a person. The culture of sexual violence on Canadian campuses, which trivializes ordeals, is a manifestation of the subjugation of gender. The media has drawn attention to this culture, reporting on rape chanting at Saint Mary’s University, misogynist Facebook posts at Dalhousie, and the suspension of the University of Ottawa’s hockey team for alleged sexual assault. Perhaps more disturbingly, a survey in 1992 found 60 percent of Canadian college-aged males would commit sexual assault if they were guaranteed to get away with it.12 Sexual violence is an endemic problem and opposing it requires more

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than just disciplinary mechanisms against the occasional pariah, but a reshaping of societal values. Punitive deterrents against acts of sexual violence are not adequate; the community must be engaged for the permissive culture to be dismantled. One aspect of development is improving how punitive measures tackle sexual violence culture. Here, the restorative justice approach provides a crucial emphasis on reconciliation, theoretically increasing survivor autonomy and fostering a normative influence on the community. The approach was successfully used in the Dalhousie Facebook group case in 2014, where male students shared explicit comments about their female classmates. The complainants chose a restorative justice approach to rehabilitate the offenders, who were subjected to 150 hours of counselling, workshops, and information sessions, with an emphasis on responsibility for the harm they had done and how to change.13 Another important aspect of development is advocacy, its importance being lost under the criminal justice approach that is naturally based on past precedents. The support of advocacy network is welcome as, after all, a complainant is not only speaking for themselves, but is burdened with the immense pressure of fighting for their identityâ&#x20AC;&#x2122;s place in society. Policies do not reflect this pressure, tending to put a disproportionate amount of attention on legal proceedings rather than the well-being of the survivor.14 Amongst the general public, research indicates a deficit of skilled trauma psychologists and sexual assault nurse examiners.15 Meanwhile, universities are hardly more approachable, tending to be dominated by white, upper-class, men. A national study by the Canadian Association of University Teachers based on data from 2016 found that only 17 percent of university professors identify as a member of a

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racialized group and that 27 percent of full professors are women.16 Restructuring support to be more robust and representative could encourage students to report sexual violence and improve faith in the administration to promote gendered issues.17 An often overlooked source of remedy is student advocacy. Students are portrayed as helpless sources of data, which detracts from their historically demonstrated capacity to organize; at the very least, post-secondary institutions could be advised not to discourage their efforts.18 The Our Turn organization is an exemplary example of collaboration, with 20 student unions across Canada working together to collect data and pressure post-secondary institutions to enhance their policies. The Our Turn Action Plan, published in 2017, outlined three broad objectives, one being â&#x20AC;&#x2DC;increased advocacyâ&#x20AC;&#x2122; and none of which call for greater punitive measures.

Provincial Policy Evaluation Starting in 2017, Ontario, Manitoba, British Columbia, and Quebec have used their leverage over public post-secondary institution funding to require universities and colleges to create stand-alone sexual violence policies.19 This offers a timely opportunity to consider their efficacy. As expected, each provinceâ&#x20AC;&#x2122;s legislation requires universities to have a structure to confidentially field disclosures, provide responses, and consult students. The Ontario policy goes further by instilling the right for students to choose not to participate in an investigation.20 However, the Quebec policy is clearly the most robust. The well-being of the complainant is prioritized, with a requirement for the complainant to be kept informed and a prohibition on gag orders. Exceptionally, the Quebec policy guarantees a report, follow-ups, and resources within a set time limit, providing a layer of comfort and structure to the survi-

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vor. Moreover, Quebecâ&#x20AC;&#x2122;s policy is distinctive in that it recognizes the need for policies to incorporate intersection and power dynamics, although it falls short of actively prohibiting intimate relationships between students and staff members.21 Another unique victory for the Quebec policy is its scope unambiguously. including acts via technology.22 The implications of this were shown in 2015, when McGill student Kathryn Leci was assaulted by another student, Conrad Gaysford, and the university refused to act because the assault took place off-campus and thus outside its jurisdiction. Gaysford was later sentenced to 12 months of house arrest in December 2017, illustrating the length of criminal justice processes.23 Notably, British Columbiaâ&#x20AC;&#x2122;s policy stands out by being the only one without a clause for raising awareness or providing training, although it does helpfully offer a definition of sexual misconduct.24 Given the previous discussion, what is noticeable across all policies is that the language continues to be grounded in criminal law. Various rights and resources are accrued to the complainant and defendant, but their battleground is continuously placed in hearings rather than society. Laws only work if society can agree on some basic principles of behaviour, yet there is no mention of the culture of sexual violence; restorative justice and advocacy are likewise absent. For a gendered issue, the policies on sexual violence are awfully de-gendered. Criticisms aside, though, there is a lack of compelling data on campus sexual violence, making it difficult to develop best practices. The structure of the policies clearly implies that they are preliminary and built for informed expansion. Canadian post-secondary institutions have a habit of concealing crimes on campus from the public eye and these provincial policies represent an important step toward government auditing of institutional procedures.25

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Notes 1

Quinlan, Elizabeth, Allyson Clarke, and Natasha Miller. “Enhancing Care and Advocacy for Sexual Assault Survivors on Canadian Campuses.” 2016. 2 Roosmalen, Erica Van, and Susan A. Mcdaniel. “Sexual Harassment in Academia: A Hazard to Womens Health.” 1999. 3 Barone, Alexandra Chantal. “An Alternative Response: Developing Restorative Justice for Sexual Violence on BC University Campuses.” 2018. 4 Salvino, Caitlin, et al. National Our Turn Action Plan. National Our Turn Action Plan. 2017. 5

Roosmalen, Erica Van, and Susan A. Mcdaniel. “Sexual Harassment in Academia: A Hazard to Womens Health.” 1999. 6

Soulliere, Danielle M. “Pathways to attrition: A qualitative comparative analysis of justifications for police designations of sexual assault complaints.” 2005. 7

Doolittle, Robin. “Canadian Police Dismissing Fewer Sexual-Assault Cases.” 2018.

Yan, Holly. “Trump Says It’s a ‘Scary Time’ for Men. Here Are the Stats on False Sexual Assault Claims.” 9 Press, Jordan. “1 In 7 Sexual Assault Cases in 2017 Deemed ‘Unfounded’: StatsCan | CBC News.” 10

Roosmalen, Erica Van, and Susan A. Mcdaniel. “Sexual Harassment in Academia: A Hazard to Womens Health.” 11

Salvino, Caitlin, et al. National Our Turn Action Plan. National Our Turn Action Plan.

Quinlan, Elizabeth, Allyson Clarke, and Natasha Miller. “Enhancing Care and Advocacy for Sexual Assault Survivors on Canadian Campuses.” 13 Barone, Alexandra Chantal. “An Alternative Response: Developing Restorative Justice for Sexual Violence on BC University Campuses.” 14 Gunraj, Andrea, and Celia Wandio. Sexual assault policies on campus: A discussion paper. 15

Quinlan, Elizabeth, Allyson Clarke, and Natasha Miller. “Enhancing Care and Advocacy for Sexual Assault Survivors on Canadian Campuses.” 16

Gordon, Andrea. “Lack of diversity persists among teaching staff at Canadian universities, colleges, report finds.” 17

Osborne, Rachel L. “The Continuum of Violence against Women in Canadian Universities.” 18

Salvino, Caitlin, et al. National Our Turn Action Plan. National Our Turn Action Plan.

Shen, Anqi. “Universities across Canada Implement Sexual Violence Policies.”

Ministry of Training, Colleges and Universities Act: Sexual Violence at Colleges and Universities. Ontario Regulation 131/16 2016. 21

Bill 151: An Act to prevent and fight sexual violence in higher education institutions.

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41st Leg, 1st sess. [Quebec City] 2017. 22

Ibid.

www.facebook.com/mcgilltribune. “Former McGill Student Sentenced to 12 Months House Arrest.” 24 Bill 23: Sexual Violence and Misconduct Policy Act. 1st Reading. 40th Leg, 5th sess. [Victoria], 2016. 25 Sheehy, Elizabeth A., and Daphne Gilbert. “Responding to Sexual Assault on Campus: What can Canadian universities learn from US law and policy?”

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The Illegal Administration of Abortions in America Jamie Cowan

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Abstract Between 1880 and 1973, abortion was illegal in the United States. This paper assesses whether individuals regularly sought out and administered abortions, in spite of the legal prohibition. While various authors, including Cyril Means Jr., a law professor whose writings significantly influenced the Roe v. Wade verdict, have espoused the notion that women have been conducting abortions throughout time, law professor, Joseph W. Dellapenna problematizes this understanding, as well as this transformative 1973 Supreme Court case. Although Supreme Court Justices likely erred in their assessment of abortion’s historical practice, physicians’ attempts to influence law, as well as evidence of women’s desperate efforts to induce miscarriages, suggests that the practice was ongoing, in spite of the period’s legal injunctions. This paper emphasizes that this notion holds significance in the twenty-first century, as individuals work consistently to overturn the Roe v. Wade ruling.

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n 1965, eight years before the Supreme Court of the United States declared the prohibition of abortion unconstitutional in Roe v. Wade, Patricia Tyson, a young, unmarried woman pursued a backroom abortion. A woman placed a tube inside Tyson, and promptly stated, “‘if you have any problems, don’t call me.’” In the 1990s, Tyson recalled the lack of proper care during and after the procedure. The abortion, which nearly killed her, consisted of poor treatment, extensive bleeding, and then pretending it never happened.1 Between 1880 and 1973, abortion was illegal in the United States. However, legal constraints did not prevent women from seeking and undergoing abortions. Historians have long debated the significant number of abortions conducted throughout history, despite fluctuations in its social acceptability. This debate begs the question: how common has abortion been in America, even during its criminalization? Certainly, factors such as longstanding controversy, official legal prohibition, and limited resources were impediments to the successful administration of abortion. With this in mind, this paper will trace individuals’ need to limit their fertility throughout history and argue that, despite powerful obstacles, this practice endured in America during the prohibition of abortions, as many women actively attempted to terminate their pregnancies. The debate surrounding the administration of abortions in early history is significant, if not central, to the subject of America’s period of criminalization. The belief that individuals widely practiced abortions throughout history influenced various studies, as well as the ground-breaking Roe v. Wade verdict in 1973. N.E. H. Hull, Williamjames Hoffer, Peter Charles Hoffer, Leslie J. Reagan, and Norma McCorvey are only some of the countless figures that have framed their discussions of United States’ abortion laws within a historically-enduring

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practice of women actively inducing miscarriages. Editors Hull, Williamjames Hoffer, and Peter Charles Hoffer note that in the ancient and early modern periods, the termination of a pregnancy was the family’s concern, and that patriarchal societies both legally and frequently induced abortions.2 They further state that early religions permitted abortions until “quickening,” when the mother felt the fetus move, and that the Church only deviated from its former tolerance in the nineteenth century.3 Similarly, Reagan asserts that common law allowed abortions before quickening in the 18th and early 19th centuries because people did not believe a new life existed until that point.4 In her autobiography, Norma McCorvey, the plaintiff who adopted the pseudonym “Jane Roe,” in the Roe v. Wade case, espouses similar understandings. McCorvey writes that ancient Romans and Greeks conducted abortions, and while some Christians opposed it, abortions were conducted “practically uninterrupted.”5 According to McCorvey, in early America, abortion was “normal though somewhat undercover,” and this normalization only shifted during the mid-nineteenth century.6 In spite of such assertions, not all academics concede that abortions have been commonplace for a substantial part of history. Joseph W. Dellapenna, a law professor, questions whether individuals were historically capable of administering abortions.7 Dellapenna traces misconceptions about abortion history to Cyril Means Jr., a law professor who advocated for its decriminalization, and charges Means with advancing myths that served his cause.8 Means wrote that before the 1800s, individuals were free to legally conduct abortions in the United States and Europe, and that states criminalized abortion in the late nineteenth century for the sole purpose of protecting women from malpractice.9 In Roe v. Wade, Supreme Court Justices had copies of Means’ articles before them. Justice Harry Blackmun reportedly cited Means

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seven times and “devoted fully half of the majority opinion… to the history of abortion,” in his consideration of the constitutionality of its prohibition.10 According to Dellapenna, the Supreme Court and various authors accepted Means’ myths, contributing to the dominant “new orthodoxy,” the notion that abortions were common throughout history, and performed “routinely, safely and easily.”11 Dellapenna vehemently opposes this view, as he points to individuals’ limited medical information throughout most of history, and thus, their use of majorly ineffective and dangerous abortive techniques.12 He notes that physicians, as late as the 1900s, expressed uncertainty as to whether irregular menstruation was a definitive indication of pregnancy, and only developed the first clinical test in 1926. Therefore, quickening was likely the most reliable sign of one’s pregnancy for much of history, making it unlikely that women knew to pursue abortive measures prior to this development.13 Dellapenna argues that the tactics that were intended to halt pregnancies typically posed serious dangers to the mother; thus, before 1880, women likely did not attempt them unless “suicidal.”14 Intrusion procedures, without more modern notions of sanitation, would have likely produced septic abortions, requiring immediate medical attention due to infection. As there is little record that physicians treated septic abortions before 1880, it is likely that the intrusive technique was not typically used previously.15 As Dellapenna recognizes physicians’ limited medical insight, he problematizes the belief that people could have conducted vast numbers of successful abortions prior to the late nineteenth century. Yet, despite scholarly disagreement over whether abortions were effectively administered prior to and during the 1800s, all accounts are consistent with the notion that people have had an enduring desire to control reproduction, and that women pursued abor-

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tions despite the risk. While Dellapenna challenges the notion that individuals had been performing successful, safe abortions for a long time, he agrees with the aforementioned authors that many people “have attempted to control their fertility,” and that abortions have occurred across societies.16 Women employed techniques of varying levels of sophistication, based on ritual, injury, ingestion, and intrusion.17 Methods ranged from the completely ineffective, in the case of taking a “hot bath” or ingesting celery, to the extremely harmful, by ingesting deadly substances.18 People were equipped with neither the tools nor knowledge to conduct successful abortions. However, evidence of a wide variety of experimented practices suggests that people were very committed to finding effective methods to terminate unwanted pregnancies. In the nineteenth and twentieth centuries, as abortionists achieved a “gradual refinement of the [intrusive] technique,” it is evident that people were administering abortions, and in large enough numbers to spur progress.19 As Joseph Lister, an English surgeon in the late 1860s, developed antiseptic surgery, and physicians of the American Civil War produced anesthetics to cope with injuries, surgical abortion techniques were well situated to improve during the era of criminalization.20 In the nineteenth and twentieth centuries, physicians attempted to affect the United States’ abortion laws. Their appeals indicate that many women were undergoing abortions, and that doctors were aware of this phenomenon. In 1859, the American Medical Association condemned abortion at any stage. Dr. Horatio R. Storer, a leading member of this anti-abortion crusade, pleaded for changes in the law to reflect that “willful killing of a human being at any stage is murder.”21 Understandably, this movement opposed Madame Restell, an abortionist with offices in New York City, Boston and Philadelphia, in the late

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1830s.22 Reagan notes that as the primary clientele for such clinics were “married, white, native-born Protestant women,” anti-abortion activists drew on Americans’ anti-immigrant sentiment to promote their cause.23 Storer asked individuals whether they envisioned the country “filled by our own children or by those of aliens.”24 As states increasingly legislated against abortion, nationwide criminalization was achieved by 1880,25 and Madame Restell slit her throat in 1878, to avoid imprisonment.26 The demise of well-known abortionists likely presented an obstruction to women seeking abortions at the time, but later physicians recorded that abortions had not ceased completely. In 1936, an anonymous physician from New York State wrote a letter to The Nation’s editor, attempting to encourage readers’ support for legalized abortion, on the basis that injunctions did not prevent individuals from administering abortions, but instead prevented their safe practice.27 The physician noted that doctors who gained patients’ honest histories would find that “abortions have become so common,” and while “95 per cent… of the medical profession” would not perform abortions themselves, physicians often supplied patients with “the names and fees of one or more abortionists.” The anonymous physician argued that legalization would facilitate a transition from “dangerous” administration, to safer, cleaner procedures by “trained surgeons.”28 One cannot infer from this letter that the majority of twentieth-century doctors advocated for the legalization of abortion. However, the efforts that Storer, the American Medical Association and this anonymous physician made to promote their causes, influence individuals, and ultimately impact legislation, suggests that doctors were often aware that women were pursuing abortive measures, and by virtue of this knowledge, motivated to speak out in support of their causes. While physicians’ activism suggests that a large number of peo-

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ple still sought abortions in the nineteenth and twentieth centuries, authorities also intensified their persecution of abortionists throughout the 1800s, and up until 1973, effectively obstructing many women from finding abortions. Following an abortion, medical complications, and sometimes a woman’s death, alerted the authorities that the illegal procedure had taken place.29 In Chicago, between 1867 and 1940, most abortion investigations began when hospital staff contacted the authorities with suspicions that a patient had been admitted ill due to an abortion attempt. Police and coroners would then interrogate the woman, with the aim of collecting a “dying declaration” of guilt, which was allowed to be admitted into evidence for the ensuing homicide case.30 In the 1940s and 1950s, authorities began to raid abortionists’ offices.31 Authorities increasingly shut down practices of “trusted and skilled” physicians who had been providing women with safe abortions for years.32 The effects were significant; a journalist from Ebony magazine in 1951 wrote that these reforms and legal crackdowns quickly ran almost “all [of] the competent abortionists out of business.”33 In her autobiography, Norma McCorvey offers her first-hand experience of the difficulties women experienced searching for an abortionist, preceding the Roe v. Wade case. McCorvey felt distressed by the news of her own pregnancy, and asked various people whether they knew of an abortionist, in an effort to terminate it.34 When this proved unsuccessful, she tried desperately to induce a miscarriage by consuming “a bottle of castor oil and… a few pounds of peanuts.”35 After this failed too, she continued to ask doctors and lawyers where she could find an abortionist, insisting that she did not care that authorities forbade abortion, or that illegal abortions were dangerous.36 McCorvey recalls a clinic receptionist eventually sharing her knowledge of an “abortion building,” however, McCorvey arrived just after a raid that left it

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deserted.37 Her last possible hope of terminating her pregnancy was to take part as plaintiff Roe, in Roe v. Wade.38 Although the Supreme Court verdict favoured McCorvey’s right to abort, the decision was too late and ultimately forced her to carry the pregnancy to term.39 Despite presenting obstacles, legal prohibition did not completely deter individuals from administering or seeking abortions. Rather, it forced the practice underground; people established secret economies and associations, avoiding outright discussion of abortion. As women were forced to move to underground sources to terminate their pregnancies, individuals acknowledged this opportunity to make money. This comes as no surprise when one considers that nineteenth century’s Madame Restell amassed significant wealth as an abortionist, despite authorities’ persecution of her.40 Even the anonymous physician’s letter to The Nation underscores the ways that economic incentives could influence the illegal practice. The doctor notes that when women wanted to abort, “unwilling for economic or other reasons to have a child,” medical professionals would agree to perform the abortion, but only “for a price.”41 A woman’s options consisted of going to a midwife, who would likely conduct the procedure for five to ten dollars, or going to a “so-called ‘private hospital,’” for at least one hundred dollars.42 As people soon recognized the desperation among pregnant women to have abortions, they formed associations in the 1960s, such as the Society for Humane Abortion, to which women turned when they could not find or afford an abortionist. Legal proscriptions and social stigma in nineteenth and twentieth-century America undoubtedly discouraged women from discussing their experiences, as direct communication about abortion produced mixed reactions. The Society for Humane Abortion taught women “self-abortion techniques,”

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and attempted to serve women by publishing their anonymous letters in newsletters, warning the public that unwanted pregnancies could prompt a woman’s “personal crisis,” and therefore lead to dangerous procedures.43 One woman testified that her mother responded to the news of her illicit abortion with total silence44, and major newspapers consistently favoured euphemisms, rather than “frank usage” of the word “abortion” itself. Widespread talk of abortion was almost non-existent and was restricted and hushed when it did exist.45 Despite significant impediments to access abortions, evidence shows that women still made consistent efforts to terminate their pregnancies prior to and during America’s period of criminalization. While scholars disagree about the degree of success that women achieved, they concede that individuals throughout history have attempted to control their fertility in a wide variety of ways. Medical limitations and legal persecution obstructed many women from obtaining safe, effective abortions; nevertheless, the practice continued underground, as individuals organized businesses and associations to meet the demand. The persistent illegal administration of abortion in America suggests that its prohibition did not halt the practice altogether, but instead, exasperated women’s desperation and drove them to seek out increasingly dangerous methods. In the twenty-first century, this phenomenon is of even greater significance for the future of women’s health, as contemporary political groups work to overturn the Roe v. Wade ruling.

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Notes 1

Hull, N.E. H., Williamjames Hoffer, and Peter Charles Hoffer, eds. The Abortion Rights Controversy in America: A Legal Reader. Chapel Hill: University of North Carolina Press, 2004, 86. 2

Ibid., 4.

Ibid., 4-5.

Reagan, Leslie J. When Abortion was a Crime: Women, Medicine, and Law in the United States, 1867-1973. University of California Press, 1997, 1. 5

McCorvey, Norma and Andy Meisler. I am Roe: My Life, Roe v. Wade, and Freedom of Choice. New York: Harper Collins Publishers, 1994, 8. 6

Ibid., 9.

Dellapenna, Joseph W. Dispelling the Myths of Abortion History. Durham: Carolina Academic Press, 2006, 18. 8

Ibid., 14.

Ibid., 13.

Ibid., 14.

Ibid., 18.

Ibid., 33-56.

Ibid., 25, 27.

Ibid., 35, 36.

Ibid., 53.

Ibid., 31.

Ibid., 32-55.

Ibid., 33, 39, 37.

Ibid., 55.

Milbauer, Barbara and Bert N. Obrentz. The Law Giveth: Legal Aspects of the Abortion Controversy. New York: Atheneum, 1983, 110-111. 21 Weingarten, Karen. Abortion in the American Imagination: Before Life and Choice, 18801940. Rutgers University Press, 2014, 29. 22

Reagan. When Abortion was a Crime, 2.

Ibid., 3.

Ibid., 6.

Weingarten. Abortion in the American Imagination, 114.

“‘Abortions in the U.S.A.,’ The Nation, August 8, 1936, 167,” in The Abortion Rights Controversy in America, 66, 67. 28

Ibid.

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29 Reagan, Leslie J. “‘About to Meet her Maker’: Women, Doctors, Dying, and the State’s Investigation of Abortion, Chicago, 1867-1940.” The Journal of American History 77, no. 4 (1991), 1246. 30

Ibid., 1249.

Reagan. When Abortion was a Crime, 119.

Ibid., 116.

Dellapenna. Dispelling the Myths of Abortion History, 545.

Ibid., 112-113, 119.

Ibid., 111-112.

Ibid., 113-114.

Ibid., 114.

Ibid., 115.

Ibid., 137.

Weingarten. Abortion in the American Imagination, 111.

“‘Abortions in the U.S.A.,’” in The Abortion Rights Controversy in America, 66, 67.

Ibid.

Greenhouse, Linda and Reva B. Siegal, eds. Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court’s Ruling. New York: Kaplan Publishing, 2010, 7. 44 45

Hull, Hoffer, Hoffer, eds.. The Abortion Rights Controversy in America, 85.

Marvin Olasky, The Press and Abortion, 1838-1988 (Hillsdale: Lawrence Erlbaum Associates Inc., 1988) 68.

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Whoâ&#x20AC;&#x2122;s Being Silenced?

An Analysis of the North American Pornography Legislation Debate

Johanna Cline

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Abstract Pornography legislation varies significantly across North America and has proven a divisive issue. In particular, there have been increasing concerns that pornographyâ&#x20AC;&#x2122;s classification as speech has largely failed to prohibit pornography that portrays women in a discriminatory and/or objectifying manner. This is evident in the cases American Booksellers v. Hudnut and R v. Butler presented in this paper. According to Catherine Mackinnon this has dangerous and detrimental effects for women as a class, as encapsulated in the Dworkin-Mackinnon Ordinance. This paper will examine how a revised, consent-focused and intersectional version of Mackinnonâ&#x20AC;&#x2122;s ordinance could reconcile the apparent tension between freedom of expression and equality that has spurred the North American debate.

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hile pornography can provide positive sexual and even aesthetic experiences for its consumers, when pornographers create and distribute images of sexual violence, they perpetuate and condone the subordination and silencing of women. In other words, pornography may glorify and normalize sexual violence which, by definition, encompasses any non-consensual, unwanted treatment of a sexual nature.1 Moreover, when the law condones, albeit indirectly, this content, it dismisses the experience, credibility, and voices of the women implicated. Historically, Canadian and American pornography laws have differed greatly from one another due to the countriesâ&#x20AC;&#x2122; diverging legal views on freedom of expression and equality. While the United States protects pornography as speech under the First Amendment, Canadian law holds violent pornography as hate speech against women under Section 163 of the Canadian Charter of Rights and Freedoms. This paper will argue that in reclassifying non-consensual pornography as an act of discrimination rather than as speech, as suggested by Catherine Mackinnon, states would not only preserve gender equality, but also preserve freedom of expression, thus reconciling the equality versus expression debate. Before continuing, it is important to address the fact that the concept of consent in pornography is multi-layered. In Canada, consent is defined as mutual, ongoing and free of coercion.2 However, the issuing of consent is more pragmatic in the case of pornography, as consent may be given in the context of the fictional scene, but is not actually given outside of the performance. With this in mind, the term consent in this paper will refer to clear consent on and off screen, and will include both performed consent and genuine consent given by the pornography actor before and throughout the scene, free of any type of coercion.

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Pornography as Speech In the 1960s and 1970s, activism by the pornography industry and its supporters resulted in the classification of pornography as speech in the United States.3 The protection of pornography as freedom of speech under the First Amendment has the benefit of preserving sex-positive pornography as well as people’s liberty to sexual expression.4 Sex-positive pornography consists of ethically-made productions that aims at empowering actors and audiences as sexual beings. In such pornography, actors have control over their own scenes, have dynamic and frequent discussions about actor consent while filming, and portray sexual scenes that empower rather than dehumanize. For example, feminist pornographer Tristan Taormino strives to depict “sexual consent and agency” while featuring “minorities underrepresented in mainstream porn.”5 As such, pornographic content created in a sex-positive and feminist environment can be an affirmative form of sexual expression that can be justifiably protected by the law. However, while the First Amendment protects empowering erotica, it also exempts the entire pornography industry from much-needed inspections on safety and morality. This allows the harmful effects of pornography, namely the normalizing of sexual violence, to go unchecked. While the preservation of sex-positive content can provide a healthy channel for sexuality, the First Amendment also protects pornographic content that glorifies non-consensual dehumanization, often of women, such as violent rape. Moreover, as previously mentioned, even scenes that are performed as consensual may, in reality, be the result of behind-the-scenes coercion.

Pornography as Discrimination Accordingly, legal theorist Catherine Mackinnon holds that regarding

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pornography as speech is strongly misguided.6 Under American law, speech can only be classified as criminal when it comprises defamation or slander. Therefore, constituting pornography as speech means that it at most counts as libel. However, Mackinnon argues that pornography does far worse than defame women: it condones sexual violence and actively discriminates against women as a class.7 Discrimination has various definitions, but in a legal context, it is often defined as unfavourable differential treatment of a socially disadvantaged group.8 Mackinnon asserts that when the subjects of group defamation are historically underprivileged groups, such as women, it becomes an act of discrimination in verbal form.9 Throughout history, women have had to fight for equal rights, freedom, and respect, thereby making them legally definable as a disadvantaged social group. Pornography that depicts violence against women constitutes disadvantageous treatment of women by controlling their image, undermining their credibility and ultimately compromising their safety. When the law protects the fetishization of sexual violence against women, it attempts to convince women that they â&#x20AC;&#x153;are not really being hurt.â&#x20AC;?10 This misogynistic mindset normalizes the idea of sexual violence, thereby contributing to harmful attitudes that may lead to sexual assault. Negative pornography also harms women by hindering their credibility, and obstructing their ability to be heard.11 When the law discredits the lived experiences of these women in an attempt to preserve freedom of expression, it ironically restricts that very right from those with the greatest need. This argument of pornography as discrimination is expanded upon in Mackinnonâ&#x20AC;&#x2122;s anti-pornography ordinance, created in collaboration with activist Andrea Dworkin. The Mackinnon-Dworkin Ordinance defines pornography as:

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graphic sexually explicit subordination of women, whether in pictures or in words, that also includes one or more of the following: (1) Women are presented as sexual objects who enjoy pain or humiliation; or (2) Women are presented as sexual objects who experience sexual pleasure in being raped; or (3) Women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt, or as dismembered or truncated or fragmented or severed into body parts; or (4) Women are presented as being penetrated by objects or animals; or (5) Women are presented in scenarios of degradation, injury abasement, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual; or (6) Women are presented as sexual objects for domination, conquest, violation, exploitation, possession, or use, or through postures or positions of servility or submission or display.12 While Mackinnon’s account of pornography as discrimination against women offers a useful legal perspective on the issue, it requires revision in two areas. First, in her book and in the ordinance, Mackinnon consistently refers to “women” as the subjects of discrimination. While it is true that women are disproportionately subjected to sexual violence in pornography, the ordinance fails to address how other disadvantaged groups are also harmed. For one, the racist fetishization of women of colour perpetuates dangerous understandings of consent that translate to instances of racialized sexual violence in pornography and in real life. For example, the propagated stereotype of Asian women as submissive “imagines them as without agency and without the capacity to give consent,” leading to dangerous assumptions of consent even “where it is not given.”13 Similarly, the fetishization of Black women as hypersexual deems them “incapable of being assaulted because [their] bodies…serve as static, menacing consent.”14 Moreover, racism in pornography, for example in slave scenes, can also lead to the degradation of not only black women but also of black men.15 Likewise, homophobic pornographic content may depict sexual violence against gay actors. Mackinnon’s

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argument could therefore be improved by taking an intersectional perspective that recognizes the specific discrimination faced by members of marginalized groups such as women, people of colour, and members of the LGBTQ+ community. Secondly, Mackinnonâ&#x20AC;&#x2122;s views in the Mackinnon-Dworkin Ordinance should be more consent-focused in their definition of harm. While the ordinance aims at addressing discrimination against women, its broad scope of what constitutes subordination appears to hold a sex-negative approach to pornography. For example, the ordinance condemns objectifying depictions of women. However, in instances where there is consistent, affirmative consent, many women can find sexual objectification to be a positive erotic experience. Depicting this type of sexual fantasy in pornography does not necessarily harm women so long as the pornography in question presents objectification alongside clearly articulated consent from the person being sexually objectified, and takes steps off screen to ensure consent is clear and consistent. Thus, the definition of objectification ultimately depends upon the presence - or lack thereof - of both real and theatrical consent, even if the situation presents a level of harm.

Case One: American Booksellers v. Hudnut In 1983, Indianapolis mayor William Hudnut adopted the Mackinnon-Dworkin Ordinance, a move that was promptly opposed by the American Booksellers Association on the grounds that the ordinance was unconstitutional under the First Amendment. Ultimately, the ban was declared unconstitutional on the grounds that the Constitution forbids the state to â&#x20AC;&#x153;declare one perspective right and silence opponents.â&#x20AC;?16 While the circuit court agreed that pornography is harmful speech because it heightens the likelihood of men subordinating women, the

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court still upheld the speech-protecting view articulated in the First Amendment.17 After all, according to the court’s interpretation, under the First Amendment, “the government must leave to the people the evaluation of ideas…an idea is as powerful as the audience allows it to be.”18 The final verdict held that pornography is speech and is thus not responsible for any acts of violence committed against women by its consumers because ultimately, consumers are accountable for how they decide to interpret the ideas put forth in pornography. In upholding freedom of expression at all costs, the First Amendment exempts people who promote sexual violence from any accountability. Mackinnon finds this problematic as, when only perpetrators are punished for assault, survivors only get partial justice. She argues that pornographers and consumers alike need to be held accountable for harm against women.19 The court’s verdict in American Booksellers v. Hudnut fails to recognize this important moral responsibility.

Case Two: R v. Butler American Booksellers v. Hudnut held pornography as speech and ultimately judged freedom of expression as more important than protecting women from the harm caused by pornography. Conversely, in R v. Butler (1987) the Canadian Supreme Court banned pornography on the grounds that it incited harm by promoting the inequality of women. In this second case, an individual named Donald Butler owned a shop selling hard-core pornographic videos, magazines and other paraphernalia. After receiving a complaint, the police seized and searched Butler’s shop and fined him for possessing and distributing pornographic materials. A few months later, Butler reopened the store but was subsequently arrested under Section 163 of the Canadian Charter of Rights and Freedoms (henceforth referred to as the Charter). The Char-

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ter deems it an offence to print, publish, distribute, circulate, and sell obscene material, whereby obscene is defined as undue exploitation of sex or sex in relation to one or more of the following: crime, horror, violence and cruelty.20 Section 163 offers tests for determining if material legally counts as obscene. The community standard of tolerance test considers whether Canadians would tolerate other Canadians being exposed to the material in question. In other words, it relies on community values to determine whether material is legal or not. Additionally, the section’s degradation and dehumanization test questions whether the material presents people in “positions of subordination, servile submission or humiliation,” consequently violating “the principles of equality and dignity of all human beings.”21 According to this test, material is obscene when it presents dehumanizing content. In R v. Butler pornography was deemed obscene because it failed both of the above tests. Like with the Mackinnon-Dworkin Ordinance, Section 163 faces the issue of upholding a seemingly sex-negative approach to pornography. As previously discussed, consent, not content, should be the key focus in determining whether pornography incites harm. For example, a piece of pornography could fail under the community tolerance test if the pooled Canadian community objected to consensual practices of bondage or sadism and masochism. Similarly, a piece of pornography could fail under the degradation and dehumanization test if it contained consensual scenes of erotic humiliation. In order to maintain a sex-positive structure, it is important that the law centre its accounts of what constitutes degrading and dehumanizing pornographic content around the presence or lack of consent. Indeed, if one reads degradation and dehumanization as consent-determined classifications, then Section 163 provides strong legal protection for women against the harms perpetu-

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ated by sexually violent pornography. Following his conviction, Butler protested that Section 163 violated citizen right to freedom of expression under Section Two of the Charter which states that “everyone has the...freedom of thought, belief, opinion and expression.”22 Despite his objections, the court held firm on their verdict citing Section One of the Charter which states that citizen freedom is “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”23 Essentially, citizen freedom only extends to forms of expression that do not bring harm to Canadian society. In R v. Butler, the court determined that while Section 163 violated Butler’s freedom of expression, it was a justified violation under Section One of the Charter.24

Reconciling Expression and Equality In R v. Butler, Section 1 of the Charter justifies limiting freedom of expression because pornography promotes harm to society; the law, in this case, values equality over freedom of expression. Conversely, in American Booksellers v. Hudnut, the First Amendment of the American Constitution allows violent pornography because it values freedom of expression over equality. While the Canadian and American values of freedom of expression differ, a revised, consent-focused and intersectional version of Mackinnon’s ordinance could reconcile the apparent tension between freedom of expression and equality by classifying violent pornography as a discriminatory act instead of a form of expression. After all, Mackinnon argues that violent pornography constitutes discrimination rather than speech because it causes the endangerment of a socially disadvantaged group. Moreover, as argued above, pornography also negatively affects the perception of other margin-

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alized groups, thereby strengthening the case for a reclassification of pornography. By applying the Mackinnon-Dworkin Ordinance, pornography would simply no longer be guaranteed the protection afforded to speech. Instead, it would be judged under a different classification, based primarily on the presence or absence of harm, as expressed by the ordinance. By reclassifying pornography in this way, freedom of expression and the preservation of equality would thus cease to be mutually exclusive in this matter. In drawing the line between violent and sex-positive pornography, the reclassification of the law would simultaneously preserve womenâ&#x20AC;&#x2122;s rights and combat discrimination caused by sexual violence.

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Notes 1

“The Law of Consent in Sexual Assault,” LEAF, last modified March 6, 2017, www.leaf. ca/the-law-of-consent. 2 “A Definition of Consent to Sexual Activities,” Department of Justice online, last modified January 7, 2015, www.justice.gc.ca/eng/cj-jp/victims-victimes/def.html. 3 Jacqueline S. Smith and David L. Tubbs. “Pornography, The Rule of Law, and Constitutional Mythology,” Harvard Journal of Law and Public Policy 41, no. 2 (2018): 499-552, http://www.harvard-jlpp.com/wp-content/uploads/2018/03/Tubbs-Smith-FINAL.pdf. 4

Catherine A. MacKinnon, Only Words (Cambridge: Harvard University Press, 2002), 90.

Anna Breslaw, “So, What IS Feminist Porn? Find out From a Woman Who Makes It,” Cosmopolitan online, last modified October 6 2017, www.cosmopolitan.com/sex. 6

Mackinnon, Only Words, 93.

Ibid., 94.

Benjamin Eidelson, “The Concept of Discrimination,” in Discrimination and Disrespect, (Oxford: Oxford University Press, 2015), 5. 9

Mackinnon, Only Words, 99.

Ibid., 105.

Ibid., 96.

American Booksellers v. Hudnut, 475 U.S. 1001 (1985).

Rachel Kuo, “How Rape Culture and Racism Combine to Hurt Asian Women,” Everyday Feminism, 2 Jan. 2017, www.everydayfeminism.com/2017/01/rape-culture-racismasian. 14 Hannah Giorgis, “Many Women of Color Don’t Go to the Police after Sexual Assault for a Reason,” The Guardian, Guardian News and Media, 25 Mar. 2015, www.theguardian. com/commentisfree/2015/mar/25/women-of-color-police-sexual. 15 Gloria Cowan and Robin R. Campbell, “Racism and Sexism in Interracial Pornography.” Psychology of Women Quarterly, vol. 18, no. 3 (1994): 323–338, doi:10.1111/j.1471-6402.1994.tb00459.x. 16

American Booksellers v. Hudnut.

Ibid.

Mackinnon, Only Words, 96.

R v. Butler, 1 SCR 452 (1992).

Ibid.

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Evolution of Standing in the Canadian Judicial System Madeleine Kausel

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Abstract This essay will argue that there has been a degradation of standing, one of the four justiciability doctrines in the Canadian legal system, over the last three decades. This assertion is supported with analyses of various Supreme Court of Canada cases, showing how judges have increasingly taken a non-interpretivist view, predominantly to hear from even those not directly involved. It will then argue that the increasing indifference to a strict interpretation of standing has contributed to the trend of judicial policymaking at the Supreme Court level. It will conclude with a discussion of both the positive and negative political implications that have followed from granting public interest standing to private litigants.

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n the Canadian legal system, there are four major doctrines that have evolved over time.1 In order to be heard by the court, one must have standing, the case cannot be moot, the legal dispute must be ripe, and it cannot raise a purely political issue that does “not raise a sufficient legal component.”2 Standing is defined as “the requirement that an individual, group, or organization be party to a legal dispute in order to initiate a legal case.”3 The doctrines of justiciability delineate the extent of judicial intervention in social, political and economic life. A non-interpretivist view of justiciability would liberalize rules of standing, mootness, political questions, and ripeness and would thus provide greater access to the courts. On the contrary, an interpretivist approach would require strict rules of standing, mootness, political questions and ripeness, making access to the courts more difficult.

The Erosion of Traditional Standing The rule of standing that traditionally operates as a gatekeeping role has been eroded over the last three decades. Three major Supreme Court of Canada cases have weakened the importance of standing: Thorson v. Canada (1975), Nova Scotia (Board of Censors) v. McNeil (1978), and Borowski v. Canada (1981). Thorson v. Canada (1975) raised a preliminary question asking whether a taxpayer has the standing to sue the government for an alleged unconstitutional use of taxpayer funds.4 The Court held that there are limited circumstances in which individuals without a direct stake in a dispute may proceed under “public interest standing.”5 The majority wrote that it was not only the alleged waste of public funds, but also the fact that it was part of a greater class action suit that gave the appellant standing. Writing for the majority, Justice Laskin argues that the prin-

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ciple of standing in Smith v. Ontario is too broad and too narrow and that the nature of the legislation being challenged should be taken into account when determining taxpayer standing. Overall, the majority established that the matter of standing is ultimately at the discretion of the Court.6 Thorson was a landmark case because it redefined the rule of standing, expanding it to individuals who were able to demonstrate a public interest in an issue to challenge government actions. The new definition of standing opens the courts up to a further expansion of what constitutes ‘public interest’. As Justice Judson writing for the dissent points out, “the plaintiff has not alleged that he as a taxpayer of Canada has suffered any special damage or damage that would set him apart from other taxpayers of Canada as a result of the enactment of the Official Languages Act.”7 After this ruling, the courts increasingly disregarded the traditional view of standing, which we can see in the analysis of the following cases. In Nova Scotia (Board of Censors) v. McNeil (1976), McNeil relied on the Thorson precedent in his response and the Supreme Court affirmed his argument for standing as a result. After Thorson, the question of standing evolved to whether or not the plaintiff was directly affected by the disputed statute. Again, delivering the majority decision, Chief Justice Laskin clarified that the distinction made in Thorson between regulatory and declaratory was not a controlling factor for standing, but rather something to consider.8 A common feature of both cases was the unlikeliness for either of them to be heard by the courts if the plaintiffs were not given standing. McNeil ultimately reaffirmed Chief Justice Laskin’s view that standing remains at the discretion of the court and that the “question of constitutionality of legislation has in this country always been a justiciable question.”9 In both cases, both of the private

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citizens approached the provincial Attorney-General for a remedy before starting a suit. Yet, Justice Laskin did not explicitly state that this was a prerequisite for standing; he only commented on the fact that they exhausted all other avenues.10 Ultimately, McNeil affirmed Thorson in support of granting exceptions to private standing expanding the scope of public interest standing. In Minister of Justice (Can.) v. Borowski (1981), Borowski was in no way affected, directly or indirectly, by the three sections of the Criminal Code, yet he was granted standing for displaying “genuine interest as a citizen in the validity of the legislation.”11 Justice Martland, writing for the majority, also argued: “that there is no other reasonable and effective manner in which the issue may be brought before the Court” and thus, Borowski should be granted standing as an interested citizen. Interestingly enough, Chief Justice Laskin, joined by Justice Lamer writes that “while exceptions to this general rule exist, none applies to [Borowski’s] case.”12 Their central justifications were that the abortion law did not affect all members of the public (like in previous case law where Laskin was writing for the majority) and that the plaintiff did not have “a greater interest than that of a citizen or taxpayer.”13 This ruling truly expanded what the court considered as ‘public interest standing,’ as the primary qualifications outlined by the majority were that the plaintiff was genuinely interested in the legislation, if he was not directly affected, and that there was no other avenue to challenge the statute’s constitutionality. Borowski (1981) is the culmination of rulings that made exceptions to the strict doctrine of standing. After the Charter of Rights and Freedoms was added to the Constitution in 1982, the Supreme Court of Canada addressed public-interest standing yet again and the principle of justiciability was further expanded and refined. The Canadian Council of Churches expressed concerns with the

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amendments to the Immigration Act, 1976, that changed the definition of a ‘Convention Refugee’ and challenged the amendments on Charter grounds. Consequently, the Attorney General of Canada brought a motion to deny the claim as the Council did not demonstrate “a cause of action” and ergo, lacked standing. Following a series of appeals, a clear test for standing was finally laid out in Canadian Council of Churches v. Canada (Minister of Employment and Immigration) (1992). It outlines a three-pronged approach that must be met to grant public interest standing, asking the following questions: First, is there a serious issue raised as to the invalidity of legislation in question? Second, has it been established that the plaintiff is directly affected by the legislation or if not, does the plaintiff have a genuine interest in its validity?14 And third, has it been established that the plaintiff is directly affected by the legislation or if not, does the plaintiff have a genuine interest in its validity? Recognizing the problem of granting a “blanket approval to all who wish to litigate an issue,” the Supreme Court established the test to balance providing access to the court system while considering the limitations of judicial resources.15 In the end, the justices denied standing to the Council as they believed that individuals who were denied refugee status could bring a similar claim. However, the significance of the decision remained; by establishing the test, the decision further expanded and clarified the concept of public-interest standing first established in Thorson and reaffirmed Borowski (1981).16 The final two cases that eroded the strict view of standing were the recent landmark cases, Chaoulli v. Quebec (AG) (2005), and Canada (AG) v. Downtown Eastside Sex Workers in United Against Violence (SWUAV) (2012). In Chaoulli (2005) the principle of standing was essentially eliminated. Mr. Chaoulli brought a suit to the Supreme Court of Canada claiming a section 7 violation of the Charter. As a doctor, he

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argued in conjunction with Mr. Zeliotis, that the prohibition of private health insurance in Quebec caused physical and psychological stress due to long wait times in the public healthcare system.17 The court heard the case regardless of the fact that Chaoulli was not “exceptionally prejudiced” by Quebec’s ban and Zeliotis did procedure receive the procedure with no major consequences from the long wait times.18 Again, the Court argued that Chaouilli demonstrated a “genuine interest” in the validity of the law that affects all Quebec residents and that health policy was unlikely to be challenged by an ill plaintiff.19 Reaffirming the tests provided by Borowski and Canadian Council of Churches, the Supreme Court has made it clear that they are holding firm to the non-interpretivist view of standing and liberally granting public interest standing. Similarly, in 2012, the Supreme Court of Canada granted the organization Downtown Eastside Sex Workers United Against Violence (SWUAV) public interest standing to dispute the constitutionality of various prostitution-related sections of the Criminal Code. Justice Cromwell, writing for the unanimous court, revised the third step in the standing test to ask “whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to court.”20 This revision, in addition to the court’s emphasis on weighing the three criteria, tore down the barrier that the strict view of standing previously presented.

Judicial Policymaking and Public Interest Standing Expanding the criteria for standing has acted as a mechanism for facilitating judicial policy-making in the last thirty years. The policy-making model is a judicial process model “that sees judges’ decisions as influenced by a desire for fair results through the development of rules

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rather than relying strictly on established legal principles.”21 In other words, this non-interpretivist model gives the power to judges to deviate from strict legal doctrines to adapt their decisions and remedies to the current socio-political milieu. By providing public interest standing, the Supreme Court has been able to adjudicate a wider range of cases that traditionally would not have been heard with the strict view of standing. With increased access to the legal system, organizations can pursue cases more easily contributing to higher rates of legal mobilization by interest groups and “genuinely interested” individuals. Considering that “the purpose of legal mobilization is to extract a judicial decision that both declares a violation of rights and defines a remedy – a remedial decree – for that violation,” greater access to the courts has increased the potential for cases to affect public policy.22 Consequently, the judiciary has ruled on issues that normally fall in the realm of the legislature. On the positive side, relaxing the rules of standing provides greater access to vulnerable groups who would otherwise not have the resources to do so. One of the functions of the Canadian court system is to protect “discrete and insular groups in society who have been disadvantaged,” especially in the post-Charter era with section 15’s equality rights protections. SWUAV (2012) provided a more contextualized standing test that better recognizes the challenges vulnerable minorities face in accessing the court system. According to Bailey and Chaisson, as a result of this new test “the SCC modeled the way in which judicial decision-making inside the courtroom can become ‘part of the solution’ in addressing the access to justice crisis.”23 Transforming standing from essentially a procedural matter to one that takes into account the socio-political context of marginalized groups makes access to legal recourse more equitable and contributes to the enforcement of the Char-

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ter of Rights and Freedoms. However, limits on standing serve an important purpose for the court system. In SWUAV, Justice Cromwell confirmed four fundamental reasons that were enumerated in Finlay v. Canada (Minister of Finance) (1986). First, standing exists to make sure that the courts do not become overburdened by “marginal or redundant cases.”24 Second, standing filters out litigants who might burden the courts with a series of lawsuits and take a position that could harm the rights of those who are directly affected by the contested law.25 Third, the rule of standing ensures that courts hear arguments from those most directly affected.26 Fourth, standing ensures that “courts play their proper role within our democratic system of government” and are not reviewing purely political issues.27 The last fundamental reason for the rule’s existence leads us into the problematic increase of judicial policymaking. The deterioration of the strict view of standing has severe implications for the separation of powers, blurring the lines between the judiciary and the legislature even further. By tearing down these limits, the courts have unfortunately exposed themselves to the threat of being overburdened with an influx of public interest cases. They have also further opened themselves up to the criticism that they are too heavily engaged in policy-making.

Conclusion The erosion of the strict view of standing has established the concept of public interest standing in the Canadian Legal system, as well as increased access to justice by litigants who would traditionally lack the qualifications to bring their case to the courts. These now relaxed requirements lend to the policy-making model as it allows courts to play an important role in shaping social and political issues. As we can see

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from the case law analysis, the erosion of standing is an underlying factor that has contributed to this overarching trend.

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Notes 1

Sossin, Lorne. Boundaries of Judicial Review: The Law of Justiciability in Canada, 2nd Edition. Carswell, 1999. Print. 2

Ibid., 171.

Hausegger, Lori et al. Canadian Courts: Law, Politics, and Process, 2nd Edition. Oxford University Press, 2015, 380. 4

Thorson v. Attorney General of Canada [1975] 1 S.C.R. 138.

Phillips, Dana. “Public Interest Standing, Access to Justice, and Democracy under the Charter: Canada (AG) v Downtown Eastside Sex Workers United Against Violence”. Constitutional Forum. University of Alberta Law. vol 22, no 2, 2013, 21. 6

Thorson v. Attorney General of Canada [1975] 1 S.C.R. 138.

Ibid.

Thorson v. Attorney General of Canada [1975] 1 S.C.R. 138.

Mullan, David. “Standing After McNeil”. Ottawa Law Review. Vol 8, No 32. Winter 1976, 37-41. 11

Minister of Justice (Can.) v. Borowski, [1981] 2 S.C.R. 575

Ibid.

Canadian Council of Churches v. Canada (Minister of Employment and Immigration) [1992] 1 S.C.R. 236. 15

Ibid.

Hausegger, Canadian Courts, 69.

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791.

Hausegger, Canadian Courts, 69.

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791.

Canada (AG) v. Downtown Eastside Sex Workers in United Against Violence (SWUAV) [2012] 2 S.C.R. 524. 21

Hausegger, Canadian Courts, 379.

Manfredi, Christopher P. and Maioni, Antonia. Health Care and the Charter: Legal Mobilization and Policy Change in Canada. University of British Columbia Press, 3 Jan 2018. Web: 2-5. 23 Bailey, Jane and Chaisson, Angela. “On Being ‘Part of the Solution’: Public Interest Standing after SWUAV SCC”. Canadian Journal of Poverty Law. 2012. 24 Canada (AG) v. Downtown Eastside Sex Workers in United Against Violence (SWUAV) [2012] 2 S.C.R. 524. 25

Bailey, Chaisson. “On Being ‘Part of the Solution’: Public Interest Standing after SWUAV SCC”, 134.

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Ibid.

Canada (AG) v. Downtown Eastside Sex Workers in United Against Violence (SWUAV) [2012] 2 S.C.R. 524.

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Climbing Over Walls

Mexican Temporary Foreign Workers in Canada

Sophie Y. Zhao

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Abstract Migration between nation-states falls into several categories, one of which is low-skilled temporary migration. This happens abundantly between Mexico and Canada, especially under Canadaâ&#x20AC;&#x2122;s temporary foreign worker program. This paper examines the effects of low-skilled temporary migration on Mexico, Canada, and the migrants themselves in terms of economic, political, and social factors. This form of migration is positive overall for Canada in its economic benefits, positive for Mexico through its remittances which develop families and communities, but detrimental for the low-skilled migrant workers who are easily subject to exploitation. Lowskilled, temporary Mexican migrant workers have climbed over countless walls to reach Canada through programs which have benefited both countries, yet even more walls remain between their current circumstances and a satisfying life.

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igration continues to change nation-states, identities, cultures, and ethnic groups. On an international level, migration occurs as citizens search for better standards of living amid disparities between nation states. It is also an agent for socioeconomic change in the countries involved in the migratory process.1 Migrants most often fall into the categories: temporary migrants, irregular migrants, refugees, asylum-seekers, family members, and return migrants.2 This investigation examined the effects of low-skilled temporary migration from Mexico to Canada in terms of both socioeconomic and psychological effects. The phenomenon of migration in Canada not only positions Mexican migrants as noncitizens but as neither immigrants nor “permanent residents.”3 The effects of low-skilled, temporary migration – those who do not have professional degrees and do not intend to settle permanently – tend to be positive for Canada and Mexico, yet harmful to those workers. Temporary low-skilled migration through initiatives like the Seasonal Agricultural Workers Program reaps a net benefit for Canada in the form of cheap, exploitable labour to fill market shortages. For Mexico, migration generates large remittances that improve communities through healthcare and education. Lastly, migration has a detrimental effect on low-skilled migrants who, in turn, face dangerous working conditions, human rights violations, as well as psychological strain.

Description Numerous low-skilled, temporary foreign workers enter Canada through bilateral agreements with Mexico. In most cases, these agreements are settled to ensure “wages, housing facilities, travel costs, possibility of nomination, and work through employment agencies.”4 Temporary

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migration programs offer legal avenues to employers and employees while addressing sectoral labour shortages flexibly, recruiting for a reliable pool of workers, retaining trained workers, minimizing wages, and ensuring that temporary migrants return to their home country at the end of their contract.5 A noteworthy example is the SAWP. Established in 1974, it is Canada’s longest prevailing temporary foreign worker program with Mexico, permitting “employers to recruit workers for farm work for 8-month periods,” and on a renewable yearly-basis.6 Of the roughly 26,000 migrant farm workers entering Canada each year, most were Mexicans bound for Ontario.7 This investigation analyzes the costs and benefits of low-skilled temporary migration for Canada, Mexico, and the migrant workers themselves. Indicators of scale and stakes for all involved include effects on the economy, capacity to promote development, potential for exploitation, mitigation of labour market concerns, and overall well-being of nation and individual. These factors are used to examine the effects of low-skilled temporary migration from Mexico to Canada, and lead to the conclusion that this migration is beneficial for both Mexico and Canada, but remains detrimental to the individual migrant worker.

Cost and Benefits for Mexico A vital consideration in this discussion of migration is whether it “encourages development of the countries of origin or, conversely, hinders such development.”8 In this case, Mexico’s development is aided far more than it is hindered. Although temporary migration has sparked a heated debate in policy and research, ‘migration optimists’ argue that it brings growth and prosperity to origin countries. Conversely, ‘migration pessimists’ argue that the phenomenon undermines development by draining origin countries of scarce human and financial resources.9

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Mexico faces both benefits and drawbacks from its low-skilled, temporary migrant worker agreements with Canada, although the pros significantly overshadow the cons. Countries with a large endowment of labour relative to capital are characterized by a high market wage, and the resulting differential in wages forces workers to move from the low-wage to the high-wage country.10 Mexico supplies these low-skilled temporary migrant workers to Canada as they seek out higher wages, some of which are sent back to Mexico. The primary benefit for Mexico in sending low-skilled workers is economic spillover from remittances. These transfers are defined as “money sent from an individual residing outside of Mexico to an individual living in the country.”11 Mexico is the largest recipient of remittances in Latin America, totaling $22 billion, or approximately 2.5 percent of Mexico’s GDP in 2010. These have ripple effects on community development.12 Statistics Canada found that Mexican-Canadian households send an average of $89 CAD back to Mexico annually. It is important to note that accurate figures on these remittances from Canada to Mexico do not technically exist, as they are not officially tracked or regulated.13 This leads to an informal, unregulated, and untaxed system where remitters choose when, where, and how much to remit. This puts power back into hands of the Mexican temporary foreign workers and enables a flow money to those who need it.14 Remittances are associated with declines in poverty and inequality. The World Bank estimates that “a percentage point increase in remittances as a share of GDP reduces inequality as measured by the Gini coefficient by around 0.08 percent and reduces poverty by 0.37 percent.”15 For Mexico, which receives billions annually, the effect of remittances on poverty is “consistent with these World Bank findings.”16 The net effect of migration and remittances is also positive for

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Mexico in terms of health: children born in households with at least one migrant member are less likely to die in their first year than children from non-migrant households.17 Moreover, health expenditures are three times more sensitive to remittance income than other sources of income.18 Despite ambiguities, aggregate figures cited above indicate that Mexico benefits significantly from remittances. For Mexico, temporary migration programs effectively import capital through remittances while exporting the unemployment problems of low-skilled workers. A reduced labour supply in Mexico due to emigration has, through a supply and demand mechanism, resulted in the â&#x20AC;&#x153;increase in wages by 0.4 percent on average for every 1 percent increase in the number of departing migrants.â&#x20AC;?19 This translates into a wage increase of about 8 percent, with the impact on low-skilled workers even more pronounced. Temporary migrant programs encourage development, knowledge, and entrepreneurship in both the returning migrant workers and the communities of which they are a part, by expanding the real capabilities of returned migrants to improve their lives using skills gained in Canada. Research confirms that these migrants are helping to cultivate development after their return.20 It is worth noting that the Mexican government is significantly involved in the recruiting and monitoring of migrants in Canada; the system not only indirectly benefits Mexico, but does so while permitting Mexican officials high levels of control over the process.21 Unfortunately, temporary low-skilled migration to developed countries from Mexico has tainted the countryâ&#x20AC;&#x2122;s national reputation. Unlike many migrants from elsewhere in the world, Mexican migrants are not from highly educated or wealthy segments of the population. To even qualify for eligibility for the SAWP, a migrant cannot have more than a 10th grade education and must be from a rural area.22 Part of this

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is to ensure that it does not cause a ‘brain drain’ from Mexico – the emigration of its highly skilled and educated people, something that many other developing countries are experiencing.

Cost and Benefits for Canada Canada is an attractive destination for many Mexican migrants as the United States becomes increasingly hostile to Mexican immigration. Canada, with its ageing population, immigration is crucial to its prosperity and continuity of its skilled workforce. According to the Organization for Economic Cooperation and Development (OECD), Canada’s annual immigration flow is now proportionally one of the highest among OECD members, at 0.7% of its population.23 Canada is part of a developed world in which there are new high-income sectors involved in professional work.24 There are also low-income groups providing low-skilled services, largely constituted by transnational migrants drawn from Third World Zones as new transnational labour pools.25 Canada has much to gain from temporary migration, as does Mexico, albeit for different reasons. The main benefit for Canada in welcoming low-skilled migrants is that employers receive reliable and experienced workers to fill labour shortages. In turn, local communities benefit from expanded employment opportunities for native workers, and foreign workers stimulate demand for local services and good.26 Canadian economic sectors, such as agriculture, construction, hospitality services, and domestic services are said to be dependent on labour migration.27 This is due to how labour migration cuts the cost of labour while increasing efficiency and strengthening the competitive position of individual companies and the national economy.28 With an acquiescent source of labour which is structurally powerless, Canada will be able to fill positions that its citizens have been

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reluctant to fill. Farmers looking to fill seasonal agricultural jobs favor immigrants because of their ability to deal with its instability, low wages, lack of benefits, and low socioeconomic mobility in a way that Canadian nationals are not, putting these employers in a structurally advantageous position.29 When farmers in Ontario experienced severe labour shortages and unreliable farm labour supplied by the National Employment Service, Ontario growers petitioned to allow the hiring of foreign workers, which now effectively caters to their commercial needs.30 In recent years, the number of low-skilled temporary migrant workers accepted into Canada has more than doubled, and regulations guide the return to their countries of origin.31 Mexico presents an excellent case study of this temporality, as the SAWP only accepts men who are “married or live in common-law for at least 6 months previous to their application” and women who are “married, live in common-law, or [are] single mothers with children who are at least 2 years old.”32 These criteria reduce workers’ incentive to remain in Canada by ensuring significant ties to Mexico, thereby “[adding] temporary workers to the labour force without adding permanent residents to the population.”33 Thus, Canada via the SAWP does not need to provide these workers with long term status or social benefits available to Canadians. Furthermore, Canadian employers enjoy active involvement in both the program’s design and administration.34 The low-skilled temporary foreign workers programs are designed to benefit individual businesses and the Canadian economy alike. These programs present several drawbacks to Canada. First, some suggest that these programs sacrifice employment opportunities and benefits for Canadian citizens.35 The fact that temporary workers are participating in lower-skilled, entry-level jobs may make it more

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difficult for people in similar economic situations such as new graduates, the unemployed, and aboriginals, to get a toehold in the labour market.36 Second, recent entry-level wages are dampened, which makes it less likely that Canadian workers will want to move from high-unemployment areas to regions with more jobs. This program has been accused of worsening the situation by leaving Canadian workers less trained, with less experience, and with fewer opportunities in the long run.37 However, the concerns about temporary migrant workers have been eclipsed by the ability of the program to maintain the stability of businesses and providing them with the potential to expand more easily. Yet critics should remember that Canadians are often unwilling to fill those jobs being performed by low-skilled Mexican migrants.38 Additionally, there is a concern that migrant workers use a disproportionate number of resources in the healthcare system due to a heightened vulnerability to STIs and other sexual health issues caused by personal, social-cultural, environmental, and structural factors.38 Although all documented migrant farm workers have medical coverage in Canada, most do not end up using these services due to language or cultural barriers and dependence on employers to access health care.40 Thus, migrants do not extensively burden Canadaâ&#x20AC;&#x2122;s healthcare system. Despite various drawbacks, Canada stands to benefit from Mexicoâ&#x20AC;&#x2122;s low-skilled temporary workers migration overall.

Cost and Benefits for Low-Skilled Mexican Migrant Workers Although low-skilled temporary migrant workers can make significantly more money working in Canada than they would in Mexico, serious costs outweigh the financial benefits. The primary benefit for a worker pursuing this path is the opportunity to gain secure employment and to

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support their family’s needs. Research has indicated that the earnings sent back to Mexico as remittances are spent on children’s education, payment of debts, construction, business start-ups, basic daily needs, and medical care.41 Because entering Canada through legitimate channels renders it unnecessary to pay recruitment or smugglers’ fees, even the poorest Mexican workers can gain employment through this program, which may also protect them from exploitation in Mexico, and give them opportunities for better jobs.42 There are numerous drawbacks to this temporary foreign worker model. Temporary migrant worker contracts restrict mobility and grant employers’ excessive control over labour contracts.43 A temporary worker cannot select or change employer, cannot reside permanently in Canada, and cannot apply for family reunification. This contributes to the emotional strain on workers from having to be away from their communities, in a situation in which they have little power.44 The need for workers to secure approval from current employers can prevent them from claiming compensation when injured or taking time off to see a doctor when sick.45 Temporary migrant worker programs are seasonal, labour intensive, oftentimes dangerous, and low paying. Moreover, there are few provincial employment acts regarding provisions governing hours of work, vacation pay, overtime, lunch breaks, minimum wage, and parental leave.46 To protect Canadian farmers and their crops, most provinces even prevent migrant workers from striking, jeopardizing the ability of these workers to defend themselves.47 In this way, low-skilled temporary Mexican migrants are vulnerable, socially excluded with limited working rights, and constantly under threat of repatriation or ostracism while working in Canada.48 Inexperience with Canadian legal and social systems, misleading information from employers, lack of emphasis on predictors of success in

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adapting to Canada like education and language ability, self-censorship to protect their positions, and threats of deportations are among the difficulties low-skilled temporary Mexican workers face.49 Additionally, it is difficult to establish the official wages paid to temporary migrant workers, first, because they are positioned in a precarious power imbalance, and second, workers voluntarily work for such Canadian wages only as they correspond to high wages in Mexico, regardless possibly being seriously undercompensated relative to Canadians.50 Temporary foreign worker policies are often discriminative.51 These workers in Canada are represented as being part of a foreign workforce, as opposed to being part of the normal workforce available to employers in Canada.52 In Canada, Mexican migrants face legal obstacles to establishing permanent residence and acquisition of citizenship, often carrying over to the second generation.53 Low-skilled temporary Mexican workers in Canada are, in a sense, â&#x20AC;&#x153;wanted but not welcome;â&#x20AC;? they lose out in this structural situation.54

Conclusion Temporary low-skilled migration from Mexico to Canada benefits both countries while harming individual workers. Temporary foreign workers continue to be socially separated as economically and racially disadvantaged communities.55 This form of migration is positive for Canada in its economic benefits, beneficial for Mexico due to its system of remittances which develop families and communities, and detrimental for the low-skilled migrant workers who are easily subject to exploitation. Low-skilled, temporary Mexican migrant workers have climbed over countless walls to reach Canada through programs which have benefited both countries, yet even more walls remain between their current circumstances and a more socioeconomically viable life.

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Notes 1

Castles, Stephen. International migration at the beginning of the twenty-first century: global trends and issues. UNESCO 2000. Blackwell Publishers, 269-281. (2000), 269; De Luna Villalón, Maria Eugenia. “Mexican Temporary Agricultural Workers In Canada: A Language And Migration Approach”. Ph.D, University of Western Ontario, 2011. 2

Ibid., 270; De Luna Villalón, 2011.

Sharma, Nandita. The “Difference” that Borders Make: “Temporary Foreign Workers” and the Social Organization of Unfreedom in Canada. In P. Lenard & C. Straehle, Legislated Inequality: Temporary Labour Migration in Canada. Montreal & Kingston: McGill-Queen’s University Press. (2012), 29. 4

Werner, Heinz. Temporary migration of foreign workers. IAB Labour Market Research Topics 18, 1-35. (1996), 12; De Luna Villalón, 2011. 5

Abella, Manolo. “Policies and best practices from management of temporary migration.” International Symposium on International Migration and Development: Population Division, 1-54, 2006; Vertovec, Steven. Circular migration: the way forward in global policy? International Migration Institute. Working papers, paper 4. (2007); Werner, 1996; De Luna Villalón, 2011. 6 Hennebry, Jenna. “Bienvenidos a Canad? Globalization and the migration industry surrounding temporary agricultural migration in Canada.” Canadian Studies in Population, Vol. 35 (2), 339-356. (2008); “Rights of Tens of Thousands of Migrants Violated in Canada”, 2015; De Luna Villalón, 2011. 7

Stastna, Kazi. (2012). Canada’s migrant farm worker system - what works and what’s lacking. CBC News. Retrieved 2 February 2018, from http://www.cbc.ca/news/canada/canada-s-migrant-farm-worker-system-what-works-and-what-s-lacking-1.1142489. 8

Castles, Stephen and Hein de Haas and Mark Miller. The age of migration (5th ed.). Basingstoke: Palgrave Macmillan. (2014), 69. 9

Ibid.

Massey, Douglas, Joaquin Arango, Graeme Hugo, Ali Kouaouci, Adela Pellegrino, and Edward Taylor. “Theories of International Migration: A Review and Appraisal.” Population and Development Review, 19(3), 431. http://dx.doi.org/10.2307/2938462 (1993), 432. 11 “Indicators of Recent Migration Flows from Mexico.” (2007). Pew Research Center’s Hispanic Trends Project. Retrieved 4 February 2018, from http://www.pewhispanic. org/2007/05/30/indicators-of-recent-migration-flows-from-mexico/. 12 Campos-Vazquez, Raymundo and Horacio Sobarzo. (2012). The Development and Fiscal Effects of Emigration on Mexico. migrationpolicy.org. Retrieved 5 April 2018, from https:// www.migrationpolicy.org/research/RMSG-development-fiscal-effects-emigration-mexico. 13

Monzon, Luis and Emina Tudakovic. “Remittances: A Canadian Perspective” International Policy Coordination - Citizenship and Immigration (CIC). (2014), 9. 14

Ibid.

Campos-Vazquez & Sobarzo, 2012, 9.

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Ibid.

Ibid., 10.

Ibid.

Ibid., 11.

Castles et al., 2014, 76.

Martin, Philip. “Managing labor migration: temporary worker programs for the 21st century.” International Labor Organization (International Institute for Labour Studies), 1-33. (2003), 29; De Luna Villalón, 2011. 22 STPS, (2009). Programa de trabajadores agrícolas temporales México-Canadá. Retrieved from http://www.stps.gob.mx/CGSNE/coord_empleo_stps.htm; De Luna Villalón, 2011. 23 Gignac, Clement. (2017). For Canada, immigration is a key to prosperity. The Globe and Mail. Retrieved 2 February 2018, from https://www.theglobeandmail.com/report-on business/economy/economy-lab/for-canada-immigration-is-a-key-toprosperity/article14711281/. 24 Robinson, William. Theories of Globalization. In G. Ritzer, The Blackwell Companion to Globalization. Malden: Blackwell Publishing. (2016), 135. 25

Ibid.

Basok, Tanya. Canada’s Temporary Migration Program: A Model Despite Flaws. migrationpolicy.org. (2007). Retrieved 2 February 2018, from_https://www.migrationpolicy.org/ article/canadas-temporary-migration-program-model-despite-flaws. 27

Wickramasekara, 2008, 1250; De Luna Villalón, 2011.

Werner, 1996, 9; De Luna Villalón, 2011.

Abella, 2006, 22; De Luna Villalón, 2011.

Ibid.

Nakache, Delphine. and Paula Kinoshita. The Canadian temporary foreign worker program: Do short-term economic need prevail over human rights concerns? In Ideas Analysis Debate, No. 5, 1-49. (2010), 34; De Luna Villalón, 2011. 32

STPS, 2009.

Martin, 2003, 2; De Luna Villalón, 2011.

Ibid., 29.

Denton, Don. (2013). Foreign workers a boon for employers, for Canada not so much. The Globe and Mail. Retrieved 4 February 2018, from https://www.theglobeandmail.com/ reporton-business/economy/jobs/foreign-workers-a-boon-for-employers-for-canada-notso-much/article11433730/. 36

Ibid.

Narushima, Miya. And Janet McLaughlin and Jackie Barrett-Greene. “Needs, Risks, and

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Context in Sexual Health Among Temporary Foreign Migrant Farmworkers in Canada: A Pilot Study with Mexican and Caribbean Workers.” Journal Of Immigrant And Minority Health, 18(2), 374-381. http://dx.doi.org/10.1007/s10903-015-0189-x (2015), 374. 40 Pysklywec, Michael, Janet McLaughlin, Michelle Tew, and Ted Haines. “Doctors within borders: meeting the health care needs of migrant farm workers in Canada.” Canadian Medical Association Journal, 183(9), 1039-1042. http://dx.doi.org/10.1503/cmaj.091404 (2011), 1041. 41

Basok, 2007; Gibb, Heather. “Farmworkers from afar: Results from an international study of seasonal farmworkers from Mexico and the Caribbean Working on Ontario Farms.” North South Institute, Ottawa. (2006), 8; De Luna Villalón, 2011. 42

Basok, 2007; Vertovec, 2007, 6; De Luna Villalón, 2011.

Basok, 2007; De Luna Villalón, 2011.

Werner, 1996, 24.

Basok, 2007; De Luna Villalón, 2011.

UFCW, (2007). The status of migrant farm workers in Canada 2006-2007, 5.

Martin, 2003, 30; UFCW, 2007, 6.

Verma, Veena. The Mexican and Caribbean Seasonal Agricultural Workers Program: regulatory and policy framework, farm industry level employment practices, and the future of the program under unionization. The North South Institute, Ottawa. (2003); De Luna Villalón, 2011. 49

Nakache & Kinoshita, 2010, 8; De Luna Villalón, 2011.

Werner, 1996, p. 2; De Luna Villalón, 2011.

Martin, Philip and Mark Miller. “Guestworkers: lessons from Western Europe.” Industrial and Labor Relations Review, Vol. 33 (3), 315-330. (1980). 52

Sharma, 2012, 29.

Zolberg, Aristide. “Wanted but Not Welcome: Alien Labour in Western Development.” W. Alonso, Population in an Interacting World. Cambridge: Harvard University Press. (1987), 73. 54

Ibid., 36.

Castles, 2000; De Luna Villalón, 2011.

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Racial Discrimination in America

An Analysis of the Implementation of Article 5(a) of the Convention on the Elimination of All Forms of Racial Discrimination

Helen Alexandra Hayes

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Abstract The Convention on the Elimination of All Racial Discrimination (CERD) was adopted by the United Nations General Assembly on 21 December 1965 by resolution 2106 (XX), entering into force on January 4, 1969. In efforts to increase awareness and accountability to international conventions, this work is focused on the actions of the United States, one of CERDâ&#x20AC;&#x2122;s signatories. Analysis of CERDs implementation in the United States will be conducted by utilizing semiotic interpretation, periodic reports, and third-party reports. Ultimately and unfortunately, the analysis will demonstrate that the failure of Americaâ&#x20AC;&#x2122;s criminal justice system to uphold CERD as it continually violates Article 5(a) by discriminating against racialized individuals.

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International Standards and the U.S.: An Introduction

he purpose of the Convention of the Elimination of All Forms of Racial Discrimination (CERD) is to take “special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them.”1 As such, the CERD aims to develop and sustain the foundation of the United Nations as well as fostering the responsibility of states parties to be accountable for such rights.2 Through the interaction of domestic and international interests, the CERD is able to demand that states parties guarantee the “full and equal enjoyment of human rights and fundamental freedoms” for racialized people.3 By analyzing the implementation of CERD Article 5(a) within the U.S., this paper will expose the conflicting standards of the right to equal treatment before tribunals set out within CERD versus the domestic realities of the U.S.’s criminal justice system. In doing so, this paper will reveal and discuss how the U.S.’s practices within its criminal justice system contradict CERD Article 5(a) and will likewise highlight the necessity of the U.S. to adopt social and legislative change. This paper will ultimately demonstrate that the American criminal justice system disregards and violates CERD Article 5(a) by discriminating against racialized individuals. Thus, this paper will contribute to literature and scholarship on both the prevention of and response to human, civil, and political rights violations in the U.S., and advocate for the proper implementation of CERD Article 5(a).

Semiotic Analysis of Article 5(a) of the CERD CERD Article 5’s paragraphs (a) – (f) set out the rights of individuals to equality before the law, while also obligating State’s Parties to guar-

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antee the “enjoyment of civil, political, economic, social and cultural rights and freedoms” without racial discrimination.4 The rights and freedoms listed in CERD Article 5 broadly require that the exercise of human rights shall be free from racial discrimination.5 In order to fulfill this obligation, states parties are required to implement provisions on special measures in their legal systems, “whether through general legislation or legislation directed to specific sectors.”6 Article 5(a) CERD Article 5(a) follows from the article’s preamble, which states that all individuals have “the right to equal treatment before tribunals and all other organs administering justice.”7 Per General Recommendation No. 34, this obligation requires states parties to secure equal access to the justice system, especially for “all people of African descent,” by providing legal aid, facilitating group claims, and taking measures to prevent the use of illegal force or degrading treatment by law enforcement agencies and officials.8 As a result of this provision, no individual may be subject to the discriminatory administration of justice nor affected by disproportionate legal consequences due to racial factors. General Recommendation No. 34 further implicates racially motivated offences with CERD Article 5(a) so as to assure the “prosecution of all persons who commit racially motivated crimes” and to guarantee the provision of adequate compensation for victims of such crimes.9 Notably, the right to equal treatment under CERD Article 5(a) is prescribed to all persons living in a given state, not only citizens or landed immigrants.10

Implementation of CERD Article 5(a) in the U.S. It is recommended by the Committee (in Article 9) that states parties report on the non-discriminatory implementation of each of the rights and freedoms referred to in the CERD. The initial report of the U.S. on

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its implementation of the CERD was due on November 20, 1995, the second on November 20, 1997, and the third periodic report on November 22, 1999.11 The U.S submitted none of these reports; rather, their first report (comprised of the three late documents) was submitted in September 2000.12

State Periodic Reports Initial Periodic Report Covering the First to Third Reports: 2000 Within this report, the U.S. contended that protections of its Constitution met the fundamental requirements of CERD implementation within the country, especially regarding Article 5.13 Some of the enumerated rights within CERD Article 5, however, are not explicitly recognized as legally enforceable rights under U.S. law.14 In order to maintain compliance with it, though, U.S. officials contended that Article 5 “does not affirmatively require States parties to provide or to ensure observance of each of the listed rights themselves.”15 As such, the U.S. believed that it was compliant with the requirements of the CERD. Of notable importance in this discussion is the right to equal treatment before tribunals and other legal instruments. The U.S.’s initial periodic report outlined the legally-binding Equal Protection Clause of the U.S. Constitution.16 This right was reinforced by Hernandez v. Texas and Batson v. Kentucky, granted the U.S. did acquiesce that the perception of unequal treatment in the American criminal justice system is widespread among African Americans and Hispanics.17 Although both the U.S. Constitution and federal statutes prohibit racial discrimination by law enforcement agencies, the Department of Justice (“DOJ”) has the power to investigate claims of alleged discrimination under the Omnibus Crime Control and Safe Streets Act and Title VI of the Civil Rights Act of 1964.18 Between 1994 and 2000,

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the DOJ conducted more than fifteen investigations into allegations of racial discrimination as a result of the practice of racial profiling.19 In an attempt to ensure that federal law enforcement officials refrained from engaging in racial profiling, President Clinton issued an Executive Memorandum in June 1999.20 This memorandum was aimed at determining if racial profiling was being practiced at the federal level.21 At the time of this paper, the findings of this executive memorandum were incomplete. The successful implementation of CERD Article 5(a)’s “right to equal treatment before tribunals and all other organs administering justice” includes an analysis of the overrepresentation of minorities within the criminal justice system.22 While African Americans made up approximately 12.5 percent of the U.S. population in 1997, approximately 47 percent of state prison inmates were African American in that same year.23 This disproportionate sentencing stems from the unequal treatment of minorities before legal tribunals. Despite the implementation of the Sentencing Reform Act in 1984, the use of mandatory minimum sentencing, especially for crack and powder cocaine charges, has disproportionately targeted minority communities.24 As identified within this report, “a greater proportion (67 per cent) of Black defendants received sentences at or above the indicated mandatory minimum.”25 Although defendants have challenged mandatory minimum sentencing schemes, generally speaking, these challenges have not succeeded.26 Joint Fourth to Sixth Periodic Report: 2007 The U.S. constitutional provision regarding the right to equal treatment before legal tribunals did not change between 2000 and 2007.27 In order to bolster this provision, the Supreme Court extended, by law, the right to counsel in all criminal prosecutions “without discrimination based on race, colour, ethnicity, and other factors.”28 As such, the U.S. contend-

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ed its successful implementation of CERD Article 5. Between 2001 and 2007, the Civil Rights Division of the DOJ investigated 22 law enforcement agencies where it was alleged that constitutional violations related to the racially charged use of force had taken place.29 This investigation gave private litigants the option to sue law enforcement agencies based on allegations of racially discriminatory police activities.30 In order to claim such act had taken place, however, plaintiffs had to bring forth “evidence that an official chose to prosecute or engage in some other action at least in part because of [...] its adverse effects upon an identifiable group.”31 By December 2004, 3.2 percent of African American males, 1.2 percent of Hispanic males, and 0.5 percent of White males in the U.S. were incarcerated in state or federal prisons.32 The rate for African American females, similarly, was more than twice that of the rate for Hispanic females and four times higher than the rate for white females.33 Overall, the prison population was estimated to be 41 percent African American.34 It can be deduced that, despite measures to ensure that minority communities have access to legal aid and are therefore represented equally before legal tribunals, pervasive systemic discrimination continues. Joint Seventh to Ninth Periodic Report: 2013 The most recent report to the Committee was submitted in 2013, and compiled findings from 2008 to 2012. Although the right to counsel is applied to all individuals in the U.S., this right does not apply to counsel for civil matters.35 As a result, the U.S. faces challenges in “both its provision of legal representation to defendants and its provision of free and affordable civil legal services.”36 The report indeed recognizes that this challenge disproportionately affects racialized individuals, but fails to suggest that this affects the federal government’s successful imple-

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mentation of Article 5(a). In 2010, the DOJ established the Access to Justice Initiative that, by 2013, was awarded approximately $5 million dollars to expand its research.37 Although this funding has increased the ability of minorities to access justice, “statistics relating to crime rates of persons belonging to some minority groups...and the proportion of minority persons in the justice and prison systems indicate the need...to make further progress in pursuing the goal of equality.”38 Implementation of CERD Article 5 in American Domestic Legislation and Jurisprudence The legal significance of ending racial discrimination has been underlined on an international stage in the CERD, the 1999 Vienna Declaration, and the 2001 Durban Declaration.39 Through these instruments, the need for states parties to implement legislation addressing discrimination based on race has become a particular concern of the global community. Within the U.S., “the cultural depth of racism and discrimination” is manifested in the “form of growing political and intellectual intolerance of the cultural and religious signs, symbols and expressions of communities, groups and individuals.”40 However, the disenchantment of race has coincided with a growth in protections available to minority communities aimed at combating racial discrimination.41 The U.S. has claimed that its “the framework of legal prohibitions...not only satisfies the requirements of [CERD], but serves as an example to the world.”42 Although many of the provisions of CERD are similar to those of U.S. federal and state legislation, if the U.S. is to successfully satisfy its obligations, it must take greater responsibility for the role that it has played and continues to play in perpetuating racial discrimination. The U.S. has failed, repeatedly, to identify and eliminate practices that have

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an unjustifiable racial impact, whether or not those practices stem from legislation or from discriminatory biases on the part of its law enforcement officials or citizens more broadly.43 Of particular importance to the implementation of CERD Article 5(a) are the ways in which the “tough on crime” era continues to impact minority communities in the unfair administration of justice. Such initiatives have been targeted primarily at minority communities residing within urban areas, with particular impact on those communities where street gangs are rampant. Tough on crime discourse is an “ideological conductor” for both popular discontents and states’ inability to manage racial antagonisms.44 The erasing of race within legislation is a tool frequently employed by the U.S. in order to appeal to a broad audience, and ensure that the text of their respective legislation appears “neutral” to factors of class and race. Although drafters construct racial dialogues in through a supposed lens of “colour-blindness,” the racial effect of such laws is well known. Proponents of “colour-blind legislation” reject any classifications based on race and argue that the “best way to end racial discrimination is by treating individuals as equally as possible, without any regard to race.”45 Such practices are unequitable -- racialization and increased sentencing have created an American prison system in which individuals of low socioeconomic status and people of colour, particularly African Americans, are dramatically overrepresented.46 More than 750,000 black men are currently behind bars, and 2 million more are under some form of correctional supervision – statistically speaking, that represents the incarceration of one in every eight black men between the ages of 25 and 34.47 This “blackening” of the American prison population has been a project of racial domination, furthered significantly by tough on crime initiatives and the dismissive

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approach to race within legislation.48 Third-Party Evaluation of the American Criminal Justice System Many NGOs work with the U.N. to shed light on violations of Article 5(a) within the U.S. Although the U.S. government suggested within its 7th-9th periodic reports that disparities in the prison population may be diminishing, this reduced racial disparity is a function of more white women being sentenced to prison, rather than action by the government to reduce current disparities.49 Moreover, these disparities continue in life after incarceration for millions of racialized people. Felony disenfranchisement is a significant consequence of American criminal justice policy, with over two million African Americans unable to vote in federal or state elections.50 This is strong evidence of the effects of breaches of CERD Article 5(a), which last a lifetime for those affected. According to a study conducted by Racial Justice Now, African Americans have only “slightly more than 50 percent of the rights and opportunities that whites do when it comes to equality before the law.”51 This is a result of racial profiling and inherently discriminatory laws, such as the “Stand Your Ground” law, throughout the U.S., as well as the inequitable enforcement of legislation that ought to protect racialized people.52

Recommendations for American Penal Reform The unequal administration of justice inherently limits an individual’s rights, including the right to a fair trial. Because there are such strong civil and human rights implications with regard to the unequal administration of justice, the U.S.’s ability to incarcerate individuals, or subject individuals to other means of criminal punishment must be reformed in accordance with CERD Article 5(a). Although the Sentencing Reform Act (1984) was legislated to

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â&#x20AC;&#x153;bring order to federal sentencing by enactingâ&#x20AC;Śguidelines that were designed to eliminate unwarranted disparityâ&#x20AC;? in the criminal justice system, the U.S. federal government has neither been able to insulate the criminal justice system from undue racial bias, nor has it reflected a willingness to successfully align legislation and legal practices with CERD Article 5.53 The following is a list of recommendations that should be considered in order to remedy CERD Article 5(a) infringements. Firstly, the American criminal justice system has failed to address the disproportionate number of racialized persons within prisons.54 In order to remedy this CERD Article 5(a) infringement, the federal government ought to implement national strategies to eliminate pervasive structural and systemic discrimination. Secondly, the harsher treatment of racialized defendants at various stages of criminal proceedings is an area of significant concern.55 As such, the U.S. government ought to draft and implement legislation requiring legal enforcement officials to take into consideration the systemic barriers that minority communities face. Such a strategy could also work to mitigate the disproportionate imposition of life imprisonment without parole on racialized people.56 Lastly, the systemic inadequacies in legal aid programmes and quality of such legal representation provided to defendants of low socio-economic status must be addressed.57 In order to do so, federal and state governments ought to extend the recognized right to counsel to include civil proceedings, and more funding should be directed towards such legal counsel to ensure that legal aid is effective. The consistent infringement of CERD Article 5(a) within the American criminal justice system suggests that the U.S. is ultimately an essential example of a state party that violates CERD Article 5. The enforcement of CERD Article 5(a) in the U.S., as well as the implemen-

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tation of the above recommendations, would significantly advance the civil, political, and human rights of minority communities, and would likewise advance the position of the U.S. in the international community.

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Notes 1

Convention on the Elimination of All Forms of Racial Discrimination, 2.

Ibid., 283.

Convention on the Elimination of All Forms of Racial Discrimination, 2.

Committee on the Elimination of All Forms of Racial Discrimination. General Recommendation No. 31 on the Prevention of Racial Discrimination in the Administration and Functioning of the Criminal Justice System. 2005. 5 Committee on the Elimination of All Forms of Racial Discrimination. General Recommendation No. 22. CERD/48/Misc. 6/Rev. 2. 1996. 6 Committee on the Elimination of All Forms of Racial Discrimination. General Recommendation No. 32. CERD/C/GC/32. 24 September 2009. 7

Convention on the Elimination of All Forms of Racial Discrimination, 3.

Committee on the Elimination of All Forms of Racial Discrimination. General Recommendation No. 34. CERD/C/GC/34. 3 October 2011. 9

Ibid., 5.

Committee on the Elimination of Racial Discrimination, General Recommendation No. 22, 1996.,1. 11 Felice, William F. 2002. “The UN Committee on the Elimination of All Forms of Racial Discrimination: Race, and Economic and Social Human Rights.” Human Rights Quarterly 24(1): (205-236), 215. 12

Ibid., 215.

Reports Submitted by States Parties Under Article 9 of the Convention: First to Third Periodic Reports of the United States of America, CERD/C/351/Add.1, 2000., p. 70, para. 298. 14

Ibid.

Reports Submitted by States Parties Under Article 9 of the Convention: First to Third Periodic Reports of the United States of America, CERD/C/351/Add.1, 2000., p. 70, para. 299. 17

Ibid.

Ibid., p. 71, para. 301.

Ibid., p. 71, para. 302.

Ibid., p. 71, para. 304.

Convention on the Elimination of All Forms of Racial Discrimination, 3.

Reports Submitted by States Parties Under Article 9 of the Convention: First to Third Periodic Reports of the United States of America, CERD/C/351/Add.1, 2000., p. 72, para. 308. 24 Reports Submitted by States Parties Under Article 9 of the Convention: First to Third Periodic Reports of the United States of America, CERD/C/351/Add.1, 2000., p. 72, para. 309-310. 25

Ibid., p. 73, para. 312.

Pre-Law Review | 2019 26

Ibid., p. 73, para. 314.

Reports Submitted by States Parties Under Article 9 of the Convention: Fourth to Sixth Periodic Reports of the United States of America, CERD/C/USA/6, 2007., p. 53, para. 149. 28

Ibid., p. 54, para. 152.

Ibid., p. 55, para. 155.

Ibid., p. 55, para. 157.

United States Court of Appeals for the Ninth Circuit, Wayte v. U.S., para. 510. 1985.

Reports Submitted by States Parties Under Article 9 of the Convention: Fourth to Sixth Periodic Reports of the United States of America, CERD/C/USA/6, 2007., p. 56, para. 162. 33

Ibid., p. 56, para. 162.

Reports submitted by States Parties Under Article 9 of the Convention: Seventh to Ninth periodic. Reports of the United States of America. CERD/C/USA/7-9, 2013., p. 26, para. 61. 36

Ibid., p. 27, para. 62.

Ibid., p. 27, para. 63.

Reports submitted by States Parties Under Article 9 of the Convention: Seventh to Ninth periodic Reports of the United States of America. CERD/C/USA/7-9, 2013., p. 27, para. 65. 39

Richard Lappin, “Should CERD Repudiate The Notion Of Race?,” 2016., 394.

Doudou Diene, Report by the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, E/CN.4/2004/18, 2004. 2. 41

Richard Lappin, “Should CERD Repudiate The Notion Of Race?,” 2016., 394.

Jamie Fellner, “Race, Drugs, and Law Enforcement in the United States,” 2009., 258 – 259. 43

Jamie Fellner, “Race, Drugs, and Law Enforcement in the United States,” 2009., 259

Anthony Platt, “Social Insecurity: The Transformation of American Criminal Justice, 1965—2000,” 2001., 141. 45 Lappin, Richard. 2016. “Should CERD Repudiate the Notion of Race?” Peace Review 28 (4): 393-398. doi:10.1080/10402659.2016.1237077, 395. 46 Brewer, Rose, and Nancy A. Heitzeg. 2008. “The Racialization of Crime and Punishment” The American Bahvioural Scientist 51(5): 625-644, 628. 47

Ibid.

Ibid., 92.

Ibid., 1.

Ibid., 4.

Racial Justice Now, Status of Descendants of Africans Enslaved in the United States and the United States’ Violation of the Convention on the Elimination of All Forms of Racial Discrimination, 2013., 30. 52

Ibid., 30.

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53 Freiberg, Arie, and Karen Gelb. 2008. “Penal Populism, Sentencing Councils And Sentencing Policy.” Willan Publishing, 103. 54

Consideration of Reports Submitted by States Parties Under Article 9 of the Convention: Concluding Observations of the Committee on the Elimination of Racial Discrimination, CERD/C/USA/CO/7-9, 2014., 10. 55 Consideration of Reports Submitted by States Parties Under Article 9 of the Convention: Concluding Observations of the Committee on the Elimination of Racial Discrimination, CERD/C/USA/CO/6, 2009., 5, para. 20. 56 Consideration of Reports Submitted by States Parties Under Article 9 of the Convention: Concluding Observations of the Committee on the Elimination of Racial Discrimination, CERD/C/USA/CO/6, 2009., 6, para. 21. 57

Ibid., 6, para. 22.

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