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A McGill Pre-Law Students’ Society Publication | 2018


The Pre-Law Review


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COPYRIGHT We would like to recognize that McGill University is located on land which has long served as a site of meeting and exchange amongst Indigenous peoples, including the Haudenosaunee and Anishinabeg nations. McGill honours, recognizes, and respects these nations as the traditional stewards of the lands and waters on which we meet today. Copyright © The Pre-Law Review: Journal of the McGill Pre-Law Students’ Society, McGill University, Montreal, Canada, 2018. 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 Trisha Iyar


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A Note from the Editor-in-Chief This past year I have had the privilege of guiding the creation of the 2017-2018 edition 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. 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. I would also like to extend my sincere gratitude to The Honourable Justice Rosalie Silberman Abella, Professor Vrinda Narain, and the McGill Pre-Law Students’ Society Executive Board. Your expertise and contributions have been truly invaluable for improving the character and quality of the journal. Finally, 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


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Our Team EDITOR-IN-CHIEF Bella Harvey

EDITORS Patrick Bouke O’Donnell Nina Chabel Chris Fitzpatrick Heather Lawson Noah Levy Austin McDougall Camille Preel-Dumas Fiona Sarazin Ellie Solloway Alexandre Vachon

GRAPHIC DESIGNER Cassidy Barnes


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Table of Contents A Few Words from the Honourable Rosalie Silberman Abella

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Feminisim, Multiculturalism, and the Law An Interview with Professor Vrinda Narain

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ARTICLES Access Denied

The Pursuit of Indigenous Access to Justice

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Britney Schyf The Other and the Eyes of the Nation

A Critical Analysis of the Zero Tolerance for Barbaric Cultural Practices Act (2015) in Canada

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Sejeong Park The Charter v. Female Judges

Impacts on the Way Gender and Sexuality Cases Are Decided

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Emma Gunther

The International Criminal Court

Challenges to Prosecution and Effects on Domestic Politics in Sudan

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Mallory Allan Beyond Consent

Feminist Legal Solutions For Sexual Violence

Paniz Khosroshahy Evaluating the Augustan Marriage Laws Lex Julia et Papia

Marina Martin

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A Few Words From the Honourable Rosalie Silberman Abella The Honourable Rosalie Silberman Abella, FRSC, became the first Jewish woman to sit on the Canadian Supreme Court bench when she was appointed to the Supreme Court of Canada in 2004. Born in a Displaced Person’s Camp in Stuttgart, Germany, her family came to Canada as refugees in 1950. She later attended the University of Toronto, where she earned a B.A. in 1967 and an LL.B. in 1970. In 1972, Justice Abella was called to the Ontario bar and practiced civil and criminal litigation until 1976, at age 29, she was appointed to the Ontario Family Court, becoming both the youngest and the first pregnant person in Canada to be appointed to the judiciary. She was appointed to the Ontario Court of Appeal in 1992. As the sole Commissioner of the 1984 Royal Commission on Equality in Employment, Justice Abella created the concept of “employment equity”, an approach used to reduce barriers in employment faced by women, visible minorities, people with disabilities, and aboriginal peoples. Considered one of Canada’s foremost experts on human rights law, Justice Abella is the recipient of 37 honorary degrees and has been a Fellow of the Royal Society of Canada since 1997.


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ou are very lucky to be future law students! A good legal education teaches you that justice is the aspirational application of law to life, which means opportunity over entitlement, compassion over indifference, and fairness over all. That is the idealistic luminescence of the justice flame the public expects from us. How to keep that flame brightly lit? I offer some suggestions in the hope that they’ll be of some help in preserving the idealism that preserves our professionalism. 1. Being a lawyer means working hard. But I consider that a luxury. To be able to spend your days, and occasionally nights, feasting the mind on the intellectual grid law generates is a feast one can easily get obese on. But having designated law as a luxury, it is worth remembering Oliver Wendell Holmes’ admonition: “Give us the luxuries of life and we will dispense with the necessities”. And what do I mean by necessities? I mean children, family, friends, books, newspapers, music, theatre. Fuel not only the public that feeds your professionalism, but also the soul that feeds your humanity. 2. Truman Capote once said of one of his closest friends: “She has only one fault. She’s perfect. Otherwise, she’s perfect”. There will be, on all of you, as members of a venerated profession, an enormous pressure to be perfect. If we try to please everyone, we may find it to be a sedative against courage. If we try to please only some, we risk criticism. And if we try to please no one, we risk obsolescence. Remember that while pleasing everyone may be a placebo that prevents criticism, long af-


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ter the bruise of criticism has disappeared, the work remains. As Isaiah Berlin once observed: “There’s no pearl without some irritation in the oyster”. The important judge is inside you, and that is the voice that should guide you. 3. Keep an open mind. Our expertise has not cloaked us with omniscience. It may have given us tools others lack, but with these should come the confidence and humility to listen and ask. On the other hand, it should also provide the confidence to break new ground. The words “we’ve always done it this way” do not necessarily constitute a valid rebuttal. And the phrase “status quo” can just as legitimately be a question as a preservative. I acknowledge that thinking with the majority is an excellent way to develop a reputation for wisdom, but lawyers have the intellectual equipment to lead this country to its best self. That means the watchwords are courage, excellence and vision, not conformity, mediocrity or indifference. 4. And so finally to success, the siren who beckons and enthrals. Success for a profession is ultimately measured by its professionalism, by the extent to which it remembers whom and how it serves. As future lawyers, you will be asked to defend, advocate, legislate, write, formulate, judge, negotiate, or teach on behalf of a public which consists of those whose lives range from the very fortunate, to those who, as Walter Lippmann once said, “come from the day’s drudgery to the evening’s despair”. They are all our public and it is for them we exist. And we are only as successful as those various publics decide we have served them. So serve them with integrity, passion, generosity, wisdom, and humility.


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Lawyers are the people who keep rights and justice safe. That means lawyers are the people who keep democracy safe. And keeping democracy safe is law’s noblest purpose. How wonderful that you’ve decided to be part of that noble mission!

Justice Rosalie Silberman Abella Supreme Court of Canada


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Feminism, Multiculturalism, and the Law An Interview with Professor Vrinda Narain

Vrinda Narain is an Associate Professor cross-appointed in the Faculties of Law and of Arts (at the McGill Institute of Gender, Sexuality and Feminist Studies), as well as the Associate Dean (Academic) at the McGill University Faculty of Law. She practiced as a lawyer in Delhi for six years and then proceeded to complete a LL.M. and a D.C.L. degree at McGill. Her teaching and research is focused on constitutional law, social diversity and the law, postcolonial studies and law, feminist legal theory, and critical race theory. She is the author of two books: Reclaiming the Nation: Muslim Women and the Law in India (University of Toronto Press, 2008) and Gender and Community: Muslim Women’s Rights in India (University of Toronto Press, 2001).

Annually, the Pre-Law Review meets with a legal professional to discuss critical and current issues in the field of law in order to gain a further understanding and greater insight into their complexity and development. Two of our team members, Bella Harvey and Fiona Sarazin, recently sat down with Professor Narain to discuss some topics of interest centred around contemporary feminist movements, issues regarding representation, intersectionality, multiculturalism, and access to justice.


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Bella Harvey: Would you kindly start by telling us a little bit about what you are currently researching? Prof. Vrinda Narain: I work on multiculturalism, feminist legal theory, and Constitutional law. I teach constitutional law and I currently am teaching the Canadian Charter of Rights and Freedoms, so I do a lot of equality, discrimination, things like that. A big project now is the Canadian Multiculturalism Project – so I look at Supreme Court decisions to see how it balances gender equality, minority rights, and religious freedom. I also review at some other important cases and law. For example, living in Quebec we have Bill C-62, which is one of the things I am looking at in my research. Harvey: What do you think some of the biggest challenges in feminist legal theory and practice are? Prof. Narain: I think globally the challenge is to have alliances. When we think about, say,

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transnational feminism, I think it is very important to locate ourselves: who we are, where we are as scholars – to have an intersectional approach. To mix in race and sexual orientation, not just the liberal women’s movement, but a more complex understanding of the different issues that face different kinds of women. Harvey: What ways do you we can incorporate issues of intersectionality and how can law address those issues? Prof. Narain: That has always been a challenge for lawyers and judges because when you are a lawyer, you like to think of things neatly in boxes, however, the trouble with an intersectional approach is that the boxes are not that neat and separate, they overlap. That is one of the biggest challenges both in terms of what feminist lawyers can do: to bring to the court an intersectional argument. For example, if we look at Bill C-62, then an intersectional approach would note that there is not


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enough here to think about, say, the religious freedom of Muslim women, but also social disadvantage, status, racialized immigrants, or the precariousness of being a new immigrant. When you have a lens that looks at all of these issues combined, it gives you a better sense of how to craft a legal response or remedy to respond to that kind of location of women around multiple axes of discrimination. Harvey: What has been your personal experience with intersectionality as a leader in the legal field? Prof. Narain: In general, people are receptive to the idea, but the challenge is how to incorporate it into legal analysis. It is an ongoing project, and the way in which we can open the door of legal analysis and let the light in is to include the perspective of people who have not been heard thus far, such as racialized women, LGBTQ+ people, groups who have not, so far, had a loud enough presence or voice. The challenges is how to

include people who are different. Fiona Sarazin: How do you think the emergence of the #MeToo and Time’s Up movements will reflect in policy initiatives both nationwide and globally? Prof. Narain: I think that instead of it being just a fad, it has to be grounded in real struggle. For it to have any kind of lasting impact we need to ground it in systemic discrimination and disadvantage, and have a response that is rooted in the goal of substantive equality. Not just an individual women assaulted by an individual man, but to address the structures of discrimination and misogyny. Sarazin: How can we take advantage of this feminist momentum to introduce substantive progressive change in the Canadian Judiciary? Prof. Narain: I think that one of the big policy pushes feminist advocates can have is to challenge norms – norms that exclude certain kinds of women


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– to increase diversity, and to have a more inclusive judiciary as well. It is not just enough to have a representational gender balance because not every woman is going to vote for another woman, as there are other experiences that are brought to bear. We need to have a diversity of experience, social class, and economic advantage. We need to recognize privilege where it is, and then we can move forward to re-articulate our understanding of a just society where women are not afraid to speak up, and you are not penalized for challenging the way things are; where you can challenge gender hierarchies and privilege. It is a responsibility of public policy makers and the state of course, but also civil society (groups like us, church organizations, etc.). Sarazin: Would a diverse judiciary be a prerequisite for increasing access to justice and equality in our society? Prof. Narain: I think that it is one of the ways – because you

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want to have your bench reflect the diversity of your population, but access to justice is a big issue. Take for example, Indigenous people; the last two claims cost over a million dollars. Now hopefully with the new Indigenous framework, we have some chance of leveling the playing field, where you do not have these huge legal fees just to access justice. Yet, there are still all kinds of issues of poverty and economic disadvantage, and racism that have to be addressed from the bottom up. Harvey: Do you think that interest groups such as the NAACP, LEAF, and AFN are effective at helping to provide access to justice for underrepresented groups within the judiciary? Prof. Narain: In the interest of full disclosure, I work with LEAF. I am in fact working on Bill C-62 with LEAF, and I have worked on previous ones such as the [R. v. N.S.] case, which was with regards to the Muslim


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woman who was not allowed to testify wearing her veil in 2012. So I would like to answer yes. The previous government cut the Court Challenges Programme. They have brought it back (although there are still issues), but the key issue for people is access to justice. As people in the legal profession, that is something we need to be mindful of. Harvey: Do you have any ideas for ways in which we could increase access to these legal frameworks and justice in a practical sense? Prof. Narain: Obviously we need more funding, we need more assured federal funding for NGOs and women’s advocacy organizations that work with underprivileged women. I work with the South-Asian Women’s Centre for example, here in Montreal, and we have to constantly apply for grants. One thing would be to have assured federal funding so we do not have to keep applying for grants that we may or may not

get. Whether federal or provincial, I think funding is key. Harvey: In your opinion, what has been one of the most impactful developments in the advancement of multicultural rights in the field of law? Prof. Narain: Personally, I think that we need to challenge multiculturalism as it currently exists because right now it is a very statist, governmentality top-down policy. I think we need to open it up a little bit more to groups who have been excluded. The state needs to have conversations with all members of minority groups, not just religious leaders, but also women. I think that the biggest push towards an expansion of multiculturalism, in my opinion, would be certain Supreme Court decisions that move us closer toward that goal of equality. In terms of state policy or legislation, things like the Zero Tolerance for Barbaric Cultural Practices Act and Bill C-62 move us backwards.


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Sarazin: Can you give us some specific examples of the Supreme Court rulings you think have been particularly impactful? Prof. Narain: Those that have been particularly impactful are [Multani v. Commission scolaire Marguerite‑Bourgeoys] decision, and even the [R. v. N.S.] decision holds out some home for minorities, particularly with the dissent of Justice Abella. Harvey: Do you think that multicultural law and feminist law are compatible with one another, or are they in opposition? If so, how can we reconcile them? Prof. Narain: I think that it is wrong to see them as in opposition. I think that they can be perfectly compatible, however, we need to understand what feminism means, and what expanding women’s equality rights means. It does not mean that to expand women’s equality rights comes at the expanse of group rights. It is quite possible to have both; they are not

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incompatible. Harvey: What about, for instance, in cultures that have deeply entrenched patriarchal customs? Prof. Narain: I think that the starting point is wrong; the premise of focusing on cultural difference is wrong. If you ask any racialized minority woman, they are interested pretty much in the same things that “mainstream” women are, such as getting their kids through school, getting a job, access to healthcare, access to justice. I think that we need to focus on structural inequalities and structural systemic disadvantage. Of course it is important to give expression to peoples’ cultural differences, but as a state we need to focus on more than just that, otherwise multiculturalism is just about everyone having a special clothes day or special food day, and we forget about things like racial profiling. We forget about access to health care, about terrible high school drop-out rates, alcohol-


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ism, etc., that the state is not looking at. These are the things that the state should really be paying attention to. Harvey: Do you think that the recent decriminalization of women driving in Saudi Arabia has reflected a growing global awareness of the feminist perspective? Prof. Narain: I think that it is only a good thing that women are now, finally [allowed to drive]. That is the only country in the world where women were not allowed to drive. I do not know if it is a growing trend. There are all kinds of issues and challenges that women face across the world because if you think about women driving in Saudi Arabia, and you think about the #MeToo movement in Hollywood, you would think that they are two different worlds, but women face the same kind of misogynistic issues in different forms. I thinkit is a global culture of disadvantage. Sarazin: Do you think that

those two movements are in some ways bouncing off one another, or related? Prof. Narain: They could be, but I mean to say that there is discrimination against women in different ways and in places where you would not expect it. You might think that Hollywood is this progressive, open place where women are working and earning big salaries, but at the same time you see the level of disadvantage and sexism that they have faced. It is not just located in particular minority cultures, sexism and gender privilege appears to be a universal problem.


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Access Denied The Pursuit of Indigenous Access to Justice

Britney Schyf


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Abstract Dimensions including cost, class, language, and geography generate numerous disparities in the Canadian judicial system and citizens’ access to justice. These factors are further exacerbated for Indigenous peoples in Canada, as a marginalized group facing systemic disadvantage. Not only do Canada’s Indigenous populations disproportionally experience the effects of these barriers, but said barriers are further exacerbated by institutional discrimination and cultural differences. This paper will argue that based on the intersection of these elements, the Canadian judicial system manifestly proves to limit Indigenous access to justice.

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he Canadian judicial system contains numerous disparities, which are often overly burdensome for Indigenous peoples across the country. Dimensions such as cost, class, and geography have been shown to disproportionately contribute to the gap in judicial access for Indigenous communities. Embedded legacies of colonialism, discrimination, and cultural differences aggrandize the injustice faced by Indigenous peoples in Canada, including impediments upon liberties, decreasing vulnerable parties’ confidence and trust in Canada’s judicial system, and further institutionalization of Indigenous exclusion and marginalization. The Indigenous case provides clear evidence of the necessity for reform based on the hindered capacity to access the Canadian judiciary. Said influences have been detrimental towards Indigenous access to justice, thereby sustaining an inadequate judicial system. To effectively evaluate dimensions of Indigenous peoples’ overall access to justice, it is important to establish a definition of what justice and access to justice consists of. Access to justice, as defined by the Canadian Forum on Civil Justice, is: […] the access that citizens have, to dispute resolution tools including but not limited to courts. Effective access to justice does not only refer to cost, lawyers and access to courts; but rather, it is a broad term that refers more generally to the efficaciousness of a justice system in meeting the dispute resolution needs of its citizens.1 Moreover, traditional interpretations of justice refer generally to the notion “of being fair and reasonable,” and the administration of the law or authority in maintaining said notions.2 Considering these definitions, an analysis on the Indigenous pursuit of justice follows.


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Institutional Discrimination As derived from an analysis of historical data and empirical research, it is evident today that the original British colonial settlements in Canada intended to eradicate the Indigenous nations established on the land. As a product of British imperialism, self-sustaining Indigenous nations were disrupted and destroyed by the “reallocation” of land and treaty rights, which was in actuality, apparent theft.3 Oppression and subordination eroded the political, legal, economic, and social systems across most Indigenous nations of Canada. Although this explanation encompasses a limited consideration of the kinds of assimilation, alienation, and discrimination Indigenous nations of Canada endured under colonialism, it is indicative of the prevailing barriers of Canada’s judicial system. During and post colonialism, the use of the legal system to fulfill assimilationist policies was and is standard. A prominent example includes the removal of children from families into the “welfare system,” better known today as residential schools.4 Wrongful treatment at the hands of Canada’s legal and judicial institutions link to historical accounts of forced settlement, forced relocation, residential schools, citizenship issues, and other attempts at assimilation, thereby creating the circumstances Indigenous nations currently experience.5 It is within this context that Indigenous communities have developed a relationship of inter-generational mistrust with the Canadian Crown and its legal system.6

Cultural Difference An equally important factor contributing to Indigenous access to justice is the inherent conflict which exists between the cultural values,


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laws, and ideologies of Indigenous perspectives on justice, contraposed by the ideology of the Canadian judicial system. The objective of an Indigenous approach to justice hinges on restoration, harmony, balance, and healing. Conversely, the Canadian system seeks judgement, retribution, and punishment.7 Such contrast in dialectics has created an Indigenous perception of dysphoria vis-à-vis the Canadian judicial system as it continues to be an alienating and discriminating instrument, devoid of core Indigenous principles or values; a system Indigenous communities cannot self-identify with, but rather a foreign system imposed upon Indigenous nations.8 The rejection and refusal to use a foreign imposed system, in conjunction with the Canadian government’s neglect to allow for the establishment of Indigenous legal systems outside the legal federal framework, hinder Indigenous access to a judicial system and subsequently the obtainment of justice. Nevertheless, in circumstances where Indigenous peoples are forced into the system (e.g. charges for a federal offense), further impediments materialize. Language Existing language obstacles further support arguments about the fundamental discrepancy between Indigenous and Canadian notions of justice. Given that legal aid and services are commonly made available in Canada’s official languages – languages spoken to a lesser extent by Indigenous nations – accessing legal resources, advice, and/or legal aid are inherently restricted. However, linguistic isolation does not end at this stage as trials, documentation, and the applicable charges also operate in an imposed second or third language that may be foreign to these communities. Therefore, linguistic barriers result in the incurrence of additional translation costs.


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This also makes access to and comprehension of legal texts and Acts in Canada problematic, especially given the nature of Anglo-Saxon legal regimes, which focus on codification. Thus, obtaining justice becomes more costly for Indigenous peoples in general, and those who self-represent often fall victim to communication barriers, succumbing to unfavourable outcomes given they cannot afford a lawyer.9

Systemic Obstacles Length Long trials produce an enormous burden on the judicial system and the parties involved.10 The inability of Canada’s judicial system to meet the needs of its citizens, irrespective of the nature of a case, provides impediments and vulnerabilities when it comes to attaining justice. Outcomes where people have chosen not to file a case as it is seemingly not “important enough” to the system, exemplify the lack of faith Canadians hold in the judicial system. In the Indigenous case, such circumstances are exacerbated by three elements. Firstly, there are fewer courts in close geographic proximity to Indigenous communities or on reserve. Rather, court circuits – a process in which judges visit reserves in rotations of two or three months and handle the existing court docket – are prevalent, yet these extend wait times.11 In addition, the prioritization and prevalence of criminal charges on the docket prolong civil and family dispute resolutions. Of even greater concern, because reserves lack crucial institutions such as rehabilitation and addiction centers used in criminal cases to reconcile individuals, judges have limited alternatives beyond incarceration.12 Further, major court centers are situated in urban centers, thus draining time and money from rural litigants who


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must commute, and inaccessibility becomes even more exacerbated by variants such as climate.13 In the case of Nunavut, accessibility constraints are compounded by the fact that its lone Court of Justice is tasked with the administration of every case within said territory.14 Moreover, because Indigenous persons are statistically less likely to obtain favourable rulings, many opt to avoid their hearing or plead guilty, rather than adjourn the case, to rid themselves of the situation altogether as opposed to obtaining a just outcome.15 Lack of Knowledge The complex nature of Canada’s judiciary often leads to circumstances where those who can afford legal costs will endure success, solely because their lawyer is experienced with the formalities of the legal realm. This can apply to aspects as specific as the kind of responses to give during questioning or knowing what your options are and their potential outcomes. Additionally, lack of knowledge refers to a limited understanding of one’s rights or how to interpret the legislation under which your case is being heard. In Indigenous cases, barriers rooted in a lack of knowledge are similar to those outlined previously. Nonetheless, mistrust in the legal system can result in skepticism and distrust in received legal advice, thereby persuading users not to take it and causing them to face a less favourable outcome. Furthermore, and in relation to claims of cultural difference, Indigenous nations across Canada pose their own legal codes, values, and principles with which they primarily identify. This can lead to inherent conflicts vis-à -vis perceptions of justice and tensions between two types of knowledge within differing systems. Such tensions generate a rejection of the Canadian system understood to be a foreign instrument used to delegitimize


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Indigenous perceptions.16 Controversially, some scholars argue that it is not feasible for individuals to claim their ‘lack of knowledge’ as a barrier to obtaining justice. Such claims are rooted in the perception that it is one’s duty to understand the legal grounds to which they are subject.17 While this is not entirely invalid, there are exceptions to these claims. For instance, under criminal law it is common knowledge that acts such as murder, theft, fraud and drug use are illegal. However, in areas of civil law, interpreting contracts or determining grounds for wrongful dismissal are less clear cut, often determined based on minute interpretations of the language. Thus, while it is important for citizens to understand the laws to which they are subject, given the nature of Canada’s judicial system and irrespective of the type of law, formalistic differences in interpretation validate a lack of knowledge or expertise as a legitimate consideration on one’s pursuit to obtain justice.18 Cost A final, but equally important factor that impedes Indigenous access to justice is the cost of obtaining justice. It is uncontroversial to state that the justice system is incredibly expensive. A high-profile story in the Toronto Star noted that a three-day trial with an average-priced lawyer costs approximately $60,000, while the median annual family income in Canada sits at $58,000.19 The primary cost for a litigant begins with a lawyer, and today lawyers in Ontario may charge anywhere from one-hundred fifty to eight-hundred dollars per hour.20 Additionally, litigants may be subject to court filing fees, photocopying costs, court transcript fees, postage, long distance phone charges, and expert witness fees.21 There is also the risk that


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the losing party may, at the discretion of the judge, be required to pay reversal fees. Although this is meant to be a mechanism to deter frivolous litigation, it also prevents a substantial number of individuals from taking their cases to court.22 In the Indigenous case, these statistics become further compounded. A significantly greater percentage of Indigenous populations across Canada live in poverty both on and off reserves. In 2013, the median income for Indigenous peoples was approximately $18,962, and the poverty rate for lone-parent Indigenous women sits at over 70%.23 One of the many consequences of poverty is a hindered ability to access the judicial system. This limits the ability of Indigenous populations to afford legal services, therefore making members of Indigenous communities dependant on legal aid. Such aid is only conditionally available if the legal issue qualifies, however.24 While legal aid is not absent in Canada, an individual must be making less than welfare to qualify. In Ontario, this equates to slightly over an annual income of $12,000.25 Thus, anyone in the middle class earns too much to qualify for legal aid but not enough to retain a lawyer themselves, and lower-class persons do not earn enough to obtain a lawyer even with the legal aid for which they qualify. Therefore, the individuals who can afford legal costs are largely situated in the upper class, creating a judicial system which caters to the wealthier members of society, including corporations, government and politicians, investment bankers, and the like. These factions are not only able to afford personal legal costs, but they are also often equipped with and further benefit from their own legal teams and experts. Thus, limited legal resources (e.g. pro bono clinics and legal aid), high litigation costs, and class-based cleavages disproportion-


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ately hinder the capacity of Indigenous peoples to access the Canadian judicial system.

Conclusion As once eloquently put by Julie Macfarlane, “[The Canadian] justice system is a nightmare... it is incredibly complex, procedurally archaic, extremely costly, timely, formalistic and downright user unfriendly.”26 While systemic obstacles such as cost, knowledge, and time evidently diminish populations’ capacity to obtain justice, there are additional barriers that are further exacerbated in an Indigenous context. Such limitations include the imposition of a culturally foreign judicial system, geographical inaccessibility, and a system that perpetuates post-colonial discrimination. As demonstrated, such circumstances have resulted in impediments upon one’s liberties, diminished confidence in and increased mistrust of the judicial system, and the further marginalization of Indigenous populations. Thus, urgent reforms, particularly ones that are sensitive to local Indigenous contexts, are needed to improve Indigenous access to justice. As it stands, Canada possesses an inadequate judicial system that continues to fail some of the populations who need it most.


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Notes “Search the Clearinghouse.” Access to Justice | Canadian Forum on Civil Justice. http://www.cfcj-fcjc.org/clearinghouse/access-justice. 2 “Justice | Definition of justice in English by Oxford Dictionaries.” Oxford Dictionaries | English. https://en.oxforddictionaries.com/definition/justice. 3 Hutchings, Claire. “Canada’s First Nations: A Legacy of Institutional Racism.” University of Saskatchewan Library, 2002. 4 VAW Legal Information Resource. http://vawlawinfo.ca/understanding-the-first-nation-metis-and-inuit-context/barriers-to-access-to-justice-forfirst-nation-metis-and-inuit-women/. 5 First Nations Representation on Ontario Juries.” First Nations Representation on Ontario Juries - Ministry of the Attorney General. https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/iacobucci/First_Nations_Representation_Ontario_Juries.html. 6 Stratton, Mary. “Creating Access to Justice in Nunavut.” Canadian Forum on Civil Justice at the University of Alberta (2009): 1-5. 7 Ibid. 8 Ibid. 9 Macfarlane, Julie. “Reasonable Doubt: Why better access to justice is every Canadians issue.” NOW Magazine. February 08, 2016. https://nowtoronto.com/ news/reasonable-doubt-better-access-to-justice-self-representation/. 10 “New Approaches to Criminal Trials.” Superior Court of Justice. http:// www.ontariocourts.ca/scj/news/publications/ctr/. 11 “First Nations Representation on Ontario Juries.” Ministry of the Attorney General. 12 VAW Legal Information Resource. 13 “First Nations Representation on Ontario Juries.” Ministry of the Attorney General. 14 Ibid. 15 Farrow, Trevor C.W. “Civil Justice, Privatization, and Democracy.” What is Access to Justice? Law and Society Commons 51, no. 3 (2014): 9. doi:10.3138/9781442663640. 16 “First Nations Representation on Ontario Juries.” Ministry of the Attorney General. 17 Farrow. “Civil Justice, Privatization, and Democracy.”, 9. 18 Ibid. 19 Tyler, Tracey. “One in three Ontarians fighting legal problems, study finds.” Thestar.com. May 31, 2010. https://www.thestar.com/news/crime/2010/05/31/ one_in_three_ontarians_fighting_legal_problems_study_finds.html. 1


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Hausegger, Lori, Troy Q. Riddell, and Matthew A. Hennigar. Canadian Courts: Law, Politics, and Process. 2nd ed. (Don Mills, Ontario: Oxford University Press Canada, 2015): 327. 21 Ibid., 328 22 Ibid. 23 VAW Legal Information Resource. 24 Ibid. 25 Macfarlane. “Reasonable Doubt.” NOW Magazine. 2016. 26 Ibid. 20


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The Other and the Eyes of the Nation A Critical Analysis of the Zero Tolerance for Barbaric Cultural Practices Act (2015) in Canada

Sejeong Park


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Abstract This paper critically analyses multicultural policies in Canada, such as Bill S-7, the Zero Tolerance for Barbaric Cultural Practices Act, to point to its problematic implications for racialized immigrant women, particularly Muslim women, whose cultural traditions could be marked as “barbaric� by its language. I write my analysis in conversation with other postcolonial feminists and Muslim feminists whose works theorise their positions at the intersections of Western misconceptions of Islam and patriarchal religions-cultural tenets. I argue that the Act fails to address the more urgent socioeconomic barriers that reinforce the precarity and vulnerability of women, and moreover can serve to obstruct their capacity to seek aid in fear of social and legal repercussions. Ultimately, this paper aims to demonstrate multiculturalism’s potential contribution to the disempowerment of racialized women by essentializing culture over structural disadvantage and criminalizing the practice of native customs fundamentally linked to their identities.

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s evidenced by Bill S-7, the Zero Tolerance for Barbaric Cultural Practices Act,1 Canadian multicultural policies can act as central mechanisms denying racialized minority women freedoms and opportunities for their growth as independent agents, capable of ensuring their own livelihoods in their host country.2 By essentializing culture as the root cause of women’s domination within racialized communities, especially Muslim communities, this legislation dismisses other factors that also mark these women’s experience of oppression, such as difficulties finding stable employment or secure housing. By forbidding and criminalizing participation in certain cultural practices, the Act compromises Muslim and other racialized women’s freedom to bring their cases forth and demand the protection of their rights under the Canadian Charter and Constitution, in fear of facing criminal charges. Whereas Bill S-7 purports to be sympathetic towards women oppressed by traditional cultures by affirming their rights to gender equality, the heroic act can have the contradictory effect of disempowering racialized immigrant women by making them more vulnerable to policing and incarceration, forcing them into a complicated position that pits their gender against their cultural identities. I begin by defining multiculturalism and its implications for racialized women. I propose that cultural explanations are limited in upholding the interests of these women because they fail to address the structural inequalities that prevent these women from gaining full autonomous agency, and delineate a dichotomy between gender and culture that cannot be reconciled. I offer a critique of the Barbaric Cultural Practices Act through a feminist legal lens by placing racialized women, the people perhaps most affected by this legislation, at the center of my analysis. I argue that this Act does not effective-


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ly empower or significantly advance immigrant minority women’s rights to freedom and equality, as the Act may serve to limit their capacity to autonomously engage with the culturally dominant society and deter them from publicly revealing their experience with oppression by patriarchal traditions. Instead, Bill S-7 works to further alienate women whose belonging and participation in certain cultural traditions are deemed incompatible with Canadian liberal-democratic statutes.

Multiculturalism: a Debate on Person or Culture? Political philosopher Will Kymlicka envisions multiculturalism as a way to enable cultural pluralism within the national community and thus assist the growth of individuals in minority groups.3 Kymlicka presumes that there is something inherently valuable in culture as it directly links to the self-actualisation of the individual.4 Kymlicka’s definition essentializes culture as a normative standard, leading to the conflation of the person with her presumptive cultural identity at the expense of recognising individual differences. Multiculturalism, therefore, bolsters implicit biases targeted towards minorities whose characters are built upon stereotypical assumptions. Western feminist Susan Moller Okin critiques multiculturalism for its tolerance of cultures that are innately oppressive and patriarchal, and whose traditions are inherently incompatible with liberal-democratic values.5 The premise is that such communities are fundamentally more oppressive, as they preserve patriarchal customs. While cultural and religious symbols such as the veil represent a powerful marker of Muslim societies’ backwardness in Western minds, Muslim women’s testimonies indicate that the wearing of


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their veil is often a matter of personal choice rather than patriarchal enforcement.6;7;8 The disjuncture between Western feminist assumptions and real testimonies signals the perseverance of “static, colonial images of the veiled woman” victimised by pervasive patriarchal forces of her cultural surrounding, partnered with a failure to acknowledge the dynamism within these groups.9 Western nations ignore the ways in which Eastern women resist patriarchal norms and customs within their home countries and transform symbols of their objectification into tools for empowerment. The rise of Muslim feminism demonstrates women’s capacity to intervene in and resist predominantly patriarchal readings of the sharia by introducing gender-equal interpretations of Islamic law.10;11 Success stories from this activism show the ability of women to utilise tools within the framework of their faith as they demand gender-equal rights as well as the malleability of the religion towards gender justice.12;13 By ignoring these instances of social change and Muslim women’s autonomy, Western nations fail to acknowledge the potential of these women to fight for their interests, and miss opportunities to empower women with tools and resources by which they can strengthen their socio-political stance.14 Leti Volpp warns against the risks of a discourse that constructs racialized women as inevitable victims of culture. Such discourses prioritize culture as the main problem for these women as other factors that go beyond the confines of their culture bolster their disempowerment.15 An exclusive focus on culture contributes to a tunnel vision that summarises women’s oppression as the outcome of a single factor and erases the structural conditions (e.g. discrimination in hiring practices, precarious employment conditions, etc.) that increase their vulnerability and limit the prospects for their


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rise in Canadian society.16 The essentializing of culture precludes the possibility of complicating the understanding on the particular positionality of minority women as they experience oppression when navigating Canadian society. Because the logic of multiculturalism posits culture as the root cause of racialized women’s domination, the ensuing state responses target cultural difference as the only source of these women’s suffering, and ignore broader ways in which these groups are treated differently by way of structural inequalities and systemic disadvantage.17;18;19 Thus, as suggested by Vrinda Narain, the Canadian state would better serve its aims of supporting minority women’s empowerment if it tackles (rather than instigates) historic disadvantages whereby women’s cultural identities are used to justify their exclusion from participating in public institutions.20

Eliminating Barbaric Practices In June 2015, the Canadian government passed Bill S-7, which established laws specifically targeted against “barbaric” Eastern cultural traditions by criminalizing their exercise within the nation and regulating the entry of immigrants who may be abiding by these customs. Former Minister of Citizenship and Immigration, Chris Alexander, explained that the Act reflects “Canada’s […] distinguished humanitarian tradition” to respond to the demands of “suffering in the world” and “meet the needs of the vulnerable.”21 Implicit in the former Minister’s statements is Canadian moral superiority, as Canada saves “brown women” from “brown men”.22 The assumption villainizes culture as the primary cause of these women’s oppression, and that the suppression of certain cultural practices will promote their liberation. The Act increases the state’s grasp over minority communi-


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ties by reinforcing the criteria of “reasonable accommodation” and tightening the state’s level of tolerance for beliefs and behaviours that are counter Canadian principles and values. The purpose of the Act is clearly summarised by its title, which echoes the language of Chapter 2, “Rights and Responsibilities of Citizenship,” from the Canadian Citizenship Guide. The section “The Equality of Women and Men” reads as follows: In Canada, men and women are equal under the law. Canada’s openness and generosity do not extend to barbaric cultural practices that tolerate spousal abuse, “honour killings,” female genital mutilation, forced marriage or other gender-based violence. Those guilty of these crimes are severely punished under Canada’s criminal laws.23 In affirming gender equality within a multicultural context, this section balances considerations of cultural freedoms and national statute, arriving at the conclusion that the former can be curtailed in the name of the latter. However, this juxtaposition establishes a false binary that forces women from these minority cultures to choose between their rights as women and their rights as members of a culture.24 Therefore, rather than promoting their rights, the Guide alienates minority women by rendering their gender and cultural identity irreconcilable. The Act echoes the “recommendations” laid in the Guide by enumerating similar practices as admissible evidence for the wrongdoing of an individual. Part 3, which amends the Criminal Code, takes measures to prevent the occurrence of gender-unequal practices by “providing that it is an offence to celebrate, aid or participate in a… rite or ceremony” when the event goes against the will of one of the parties, or one to-be-spouse is under the age of 16.25 Whereas they


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strive reaffirm the freedom of choice of minority women, these precautions have the effect of enabling their imprisonment by lumping them into the “everyone” partaking in the event. Women forced into a marriage due to cultural norms and expectations are vulnerable to criminalization under Canadian national statutes. Evidently, Canadian laws can facilitate the conviction and incarceration of racialized women rather than supporting their rights over their bodies. Furthermore, by permitting youth justice courts to “make orders against a young person” under “fear of injury” or “criminal organisational offence,” the Act facilitates the surveillance of minority girls prone to become victims or members of undesirable groups. This provision points to a sort of “biopower” whereby Canadian authorities can exercise tighter control over minority groups.26;27 Bill S-7 grants Canadian officials the power to form judgements based on their judgements of the individual with little to no standard, as reflected by the Act’s vague language. A person who “is or will be practicing polygamy” can be evaluated as inadmissible into Canada.28 The Act does not precise the need for documented proof in order to deny entry; its enforcement is therefore based on the official’s judgement of the person’s legality. The placement in the future implies that the official’s belief the individual may engage in these relations sometime later, is also sufficient evidence for her refusal. The definition of “polygamy” employed under this Act is also problematic because it enables the indictment and incarceration of a person suspected of being “married” to more than one person. According to section 293 of the Criminal Code, anyone who “consents to” or “enters into” any form of “conjugal union with more than one person at the same time whether or not it is by law recognized as a binding form of marriage,” can be criminalized.29 Under common law,


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couples can be considered as spouses if they live together after a certain period of time.30 Even in the absence of a legal binding, people living together in the same location for convenience or financial reasons can be accused of committing polygamy and therefore face criminal charges. Under Bill S-7, women are disempowered to seek support or aid because their appeals might lead to their criminalization if they are found guilty of participating in a “barbaric cultural practice.” An examination of all-women’s alternative dispute resolution courts in India exhibits the importance of the environment in which legal aid is provided to empower women to speak about their personal experiences. The atmosphere of these courts is encouraging for female clients as legal advocates center their voices when analysing their cases and reach settlements that do not compromise their welfare.31 In contrast, Bill S-7 de-centers women from the equation by transferring the power to the foreign or Canadian official whose subjective judgement is her case’s deciding factor. It forces her to remain in silence and hide her experiences of oppression and violence, as coming forward may result in her incarceration because of her participation in an indictable action tied to her culture. The bill also deters her from seeking support by posing the dilemma of choosing between appealing to the state (which implies abandoning her heritage) or maintaining her silence (not receiving help and becoming susceptible to criminal punishment). The Canadian government justifies the Act by invoking principles of gender equality, and claims to protect these women from gendered practices upheld in their communities. But by placing culture as the main villain and promulgating a narrative whereby certain cultural expressions are perceived as criminal actions, the state exacerbates the marginalization of racialized


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women who must either forgo their cultural authenticity or turn into accomplices of crimes against the nation. One should not be punished for fulfilling the norms with which she is socialised when the fulfilment of these expectations induces comfort, kinship, and familiarity.32

Conclusion The precarity of women of colour arises from the failure to incorporate their identities along the lines of both gender and culture. In the eyes of the host nation, they are Othered outsiders whose traditions are judged incompatible with the nation. Within their communities, they are subjects of gendered norms and expectations they can neither question nor challenge because of the sense of belonging they derive from their communal group. The main purpose of this paper is to caution against the dangers posed by Bill S-7, an act that puts racialized women into a state of further vulnerability whereby they fear backlash from Canadian society and their immediate communities. Whereas Bill S-7 is in line with notions of gender equality and women’s rights, its origins in Western discourse give the legislation an Orientalist tone that fails to address the full complexity of racialized immigrant women’s intersectional33 positions in Canada.34 As opposed to expanding women’s capacity to access proper food, housing, education and employment (which are also necessary for their survival and livelihood), and fostering an environment where they can freely seek aid or support against their experiences of violence or oppression, the Barbaric Cultural Practices Act fails to incorporate considerations of structural inequalities and historic disadvantages as well as the identities of these women as both women and members of cultures. Women of


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colour are forced to choose to either stand for their rights as women, or for their cultural groups against the regulation of the state. I concur with Mari Matsuda that the potential to combat oppression and domination for these women lies on our “deliberate choice to see the world from the standpoint of the oppressed�.35 Rather than pointing figures to cultures and forbidding certain practices which may be fundamentally linked to the identity of another, we must critically reflect upon and look beyond our implicit biases to recognise the real needs, concerns and interests of those who live different embodied realities.


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Notes Hereafter, I will refer to the Zero Tolerance for Barbaric Cultural Practices Act in the shortened form of Barbaric Cultural Practices Act, Bill S-7, the Act, or the bill. 2 Branch, Legislative Services. “Consolidated federal laws of Canada, Zero Tolerance for Barbaric Cultural Practices Act.” Legislative Services Branch. February 26, 2018. http://laws-lois.justice.gc.ca/eng/AnnualStatutes/2015_29/page-1.html. 3 Will Kymlicka, Multicultural Citizenship: A liberal theory of minority rights (Oxford: Clarendon Press, 1995), 9-12. 4 Ibid., 152. 5 Susan M. Okin, “Is Multiculturalism Bad for Women?” in Is Multiculturalism Bad for Women? (Princeton: Princeton University Press, 1999), 9-10. 6 Homa Hoodfar conducted an anthropological study in Iran in which she asked participants, all Muslim women from various ages, to reflect upon the brief period when the “de-veiling law” became active in the 1930s. The women responded that the implementation of this law pushed them to ask their husbands and male relatives to carry out public tasks they habitually carried out by themselves to avoid police harassment. Young women and girls faced further control from their families who placed restrictions on their external excursions. Wives also lost their financial autonomy as their husbands forbid them to freely engage in the labour market, sometimes even taking over their businesses and clientele. John R. Bowen made a similar finding in his anthropological study in France, in which he collected Muslim girls’ and women’s responses on why they adamantly continued to wear their hijabs despite their prohibition in public spaces. Participants indicated feeling safer wearing the veil than without, as they felt naked and exposed to the male gaze and undesired sexual attention. 7 Homa Hoodfar, “The Veil in their Minds and on our Heads: The persistence of colonial images of Muslim women,” Resources for Feminist Research 22, no. 3 (1992), 6. 8 Bowen, John R. Why the French Don’t Like Headscarves. Princeton University Press, 2007. 9 Chandra T. Mohanty. “Under Western Eyes: Feminist scholarship and colonial discourses,” Feminism without Borders 17 (2006), 17-19. 10 Ziba Mir-Hosseini explains the primary purpose of Muslim feminism to be the disruption of prevailing patriarchal interpretations of sharia (Islamic law) through their gender-equal interventions. Muslim feminists engage in a constant dialogue with the Islamic Iranian government as they offer new readings of the sharia that are more woman-friendly and thus negotiate the possibilities for women’s rights within the framework of the Muslim faith. In Mir-Hosseini’s words, “a movement to sever patriarchy from Islamic ideals and sacred texts and 1


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to give voice to an ethical and egalitarian vision of Islam can and does empower Muslim women from all walks of life” (645). 11 Mir-Hosseini. “Muslim Women’s Quest for Equality: Between Islamic Law and Feminism.” Critical Inquiry 32, no. 4 (2006): 629-645. doi:10.2307/3877129. 12 In her article “Islamico-Civil ‘Rights Talk’,” Arzoo Osanloo discusses recent developments in Iranian family courts in which Muslim women “vernacularise” the language of human rights by adapting it to their local contexts. As such, Muslim-feminist women base their rights claims on the universal language of human rights while contextualising and rooting their demands within their faith. 13 Osanloo, Arzoo. “Islamico-civil “rights talk”: Women, subjectivity, and law in Iranian family court.” American Ethnologist 33, no. 2 (2006): 101-119. doi:10.1525/ae.2006.33.2.191. 14 Leti Volpp, “Feminism v. Multiculturalism,” Columbia Law Review 101, no. 1181 (2001), 1211. 15 Ibid., 1208-1209 16 Ibid., 1187. 17 The Canadian government issued cuts in the funding of immigrant women’s shelters, further complicating these women’s access to secure housing if something were to happen in their marital relationships. Additionally, hiring practices often incorporate requirements such as the need for “Canadian work experience” and Canadian educational degrees that do not allow the recognition of foreign degrees and professional attainments. 18 FAFIA-AFAI. “Canada: Women’s Civil and Political Rights.” 2015. 19 Premji et al. “Precarious Work Experience of Racialized Immigrant Women in Toronto: A Community-Based Study.” Just Labour: A Canadian Journal of Work and Society 22, 122-143. 20 Narain, Vrinda. “Taking Culture out of Multiculturalism.” Canadian Journal of Women and the Law 26, no. 1 (2014): 131. 21 Alexander, Chris. “Debates of June 16th, 2015.” Openparliament.ca. https:// openparliament.ca/debates/2015/6/16/chris-alexander-2/. 22 Gayatri C. Spivak, “Can the Subaltern Speak?” in Marxism and the Interpretation of Culture (Basingstoke: MacMillan Education, 1988), 93. 23 Citizenship and Immigration Canada, Discover Canada: The rights and responsibilities of Citizenship (2012), 9. 24 Narain. “Taking Culture out of Multiculturalism.”, 131. 25 Zero Tolerance for Barbaric Cultural Practices Act. 2015. 26 Michel Foucault describes “biopower” as the state’s ability to regulate the natural, biological, and reproductive capacities of the body within the people of its jurisdiction. Examples of state mechanisms for biopower are quotas for birth rates, eugenics projects, and censorship over sexual relations between groups of


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people. 27 Foucault, Michel. The History of Sexuality. 1978. Vintage Books, 1990. 28 Zero Tolerance for Barbaric Cultural Practices Act (2015). 29 Branch, Legislative Services. “Consolidated federal laws of Canada, Criminal Code.” Legislative Services Branch. February 26, 2018. http://laws-lois.justice. gc.ca/eng/acts/C-46/section-293.html. 30 Citizenship and Immigration Canada. Discover Canada: The rights and responsibilities of citizenship. 2012. 31 Kethineni, Sesha et al. “Combatting Violence against Women in India: Nariadalats and gender-based justice.” Women and Criminal Justice (2016): 1-20. 32 Butler, Judith. Undoing Gender. New York: Routledge, 2004, 4-5. 33 Critical race theory and feminist legal scholar Kimberlé Crenshaw defines “intersectionality” as the recognition of how two or more interlocking dimensions of identity are fundamentally interwoven, overlapping, and together working to produce a particular embodied experience for an individual. Furthermore, these relationships are essential to understanding the full intricacies, complexities and dynamics surrounding the person’s lived experience. 34 Crenshaw, Kimberlé W. “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color.” Critical Race Theory: The Key Writings That Formed the Movement (1996): 9. 35 Matsuda, Mari. “When the First Quail Calls: Multiple consciousness as jurisprudential method.” Women’s Rights Law Reporter 11, no. 1 (1989): 9.


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The Charter v. Female Judges Which has the greatest impact on the way that gender and sexuality based cases are decided?

Emma Gunther


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Abstract Dimensions including cost, class, language, and geography generate numerous disparities in the Canadian judicial system and citizens’ access to justice. These factors are further exacerbated for Indigenous peoples in Canada, as a marginalized group facing systemic disadvantage. Not only do Canada’s Indigenous populations disproportionally experience the effects of these barriers, but said barriers are further exacerbated by institutional discrimination and cultural differences. This paper will argue that based on the intersection of these elements, the Canadian judicial system manifestly proves to limit Indigenous access to justice.

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his investigation seeks to determine whether the introduction of the Canadian Charter of Rights and Freedoms, or more female Supreme Court judges, has greater impacted verdicts on gender and sexuality based cases. To make a determination, an analysis of two gender based cases will be performed from three different eras. The first to be examined will be the pre-Charter era, defined as lasting from 1875, the time of the Court’s creation, to 1981, the last year before the Charter’s introduction.1 The cases examined in this period were not judged by women. A second set of cases will be examined from the post-Charter era, involving limited participation of female judges (one or two). The final set of cases come from the post-Charter era, but have a relatively high number of female judges on the Court. Upon examining the three periods, it will become evident that, while the introduction of the Charter had a positive impact for women’s rights in the Supreme Court, the impact of a large proportion of female judges was greater.

The Pre-Charter Era Canada (AG) v. Lavell In 1973, Canada (AG) v. Lavell came before the Court. The case involved two women, Mrs. Lavell of the Wikwemikong Band, and Mrs. Bédard, who was from the Six Nations Indian Reserve.2 Both women held Indian status under the Indian Act until their respective marriages to non-Indigenous men led to their removal from the Indian Register under section 12(b) of the Indian Act. In a previous case, Mrs. Lavell appealed the decision to have her name deleted from the Register, arguing that s.12(b) was rendered inoperative by s.1(b) of the Canadian Bill of Rights, which recognizes “equality before the law,” however, this initial appeal failed. When the case later went


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before the Federal Court of Appeal, it was determined that s.12(b) did, after all, conflict with s.1(b) of the Bill of Rights. Following Mrs. Lavell’s initial case, Mrs. Bédard moved onto a property on the Six Nations Indian Reserve after separating from her husband. She was asked to leave and dispose of the property due to her loss of status. Based on the precedent of Mrs. Lavell’s case, Mrs. Bédard received a decision in her favour for her similar appeal in the Supreme Court of Ontario. However, both decisions were appealed to the Federal Court of Appeal in the Supreme Court of Canada. Ultimately, the majority of the nine judges decided that the Bill of Rights “[…] was not intended to effect a virtual suppression of federal legislation over Indians,” and that the issue at hand was not a women’s issue, but rather an Indigenous women’s issue.3 The women must not be compared to Indigenous men, but rather be regarded as equal when compared to other women. As such, neither woman received a decision in her favour. However, four judges dissented, stating that the words “without discrimination by reason of race, national origin, colour, religion or sex,” could not be ignored.4; 5 Pre-Charter Findings The case would not be decided as such today; the Bill of Rights has since been replaced by the stronger Charter of Rights and Freedoms. Additionally, the Indian Act has since eliminated s.12, and a new precedent was set by in Brooks v. Canada Safeway Ltd.6 The case was examined using a very narrow reading of the Bill of Rights; the appellants were considered not as women, but rather as representatives of a very specific group of women (Indigenous women). Throughout the examination and analysis of the following cases, it will become apparent that since the implementation of the entrenched Charter,


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the Court has recognized a more comprehensive view of women’s rights. With the examination of the following two sections, it will become increasingly obvious how little protection women had for their rights in the pre-Charter era in contrast. These cases definitively display the shortcomings of the Bill of Rights. The following examination of the Charter of Rights and Freedoms will demonstrate that it too does not completely protect women’s rights. The cases examined above represents the pre-Charter era, when not a single woman sat on the Supreme Court of Canada and the Bill of Rights was narrowly interpreted. The observations demonstrate that a lack of female judges and the weak legal documents in use at the time were inadequate when protecting women’s rights. The following section will demonstrate that both the Charter and the introduction of female judges granted women greater judicial protections, although the greatest influence was the inclusion of more women in the judicial process.

Post Charter of Rights and Freedoms The Charter of Rights and Freedoms was entrenched in the Constitution of Canada in 1982.7 The first female judge was appointed to the Supreme Court in the same year.8 The case to be examined in this section, R v. Morgentaler, had one female judge presiding over it. However, due to the female justice representing a small minority on the judge’s bench, her influence over the decision was limited. Her individual decisions will be examined and compared to the overall outcome. R v. Morgentaler The R v. Morgentaler case came before the Court several times, however, this evaluation will strictly examine the case which was heard


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in 1986 and decided in 1988. Bertha Wilson was the only female on the seven judge panel. Dr. Morgentaler, along with Dr. Frank Smoling and Dr. Scott, opened an abortion clinic in Toronto. At the time, women seeking abortions needed approval from the therapeutic abortion committee of a hospital, as required by s. 251(4) of the Criminal Code (which has since been removed). The abortion clinic opened by these doctors did not comply with this, and as such the three were tried. The doctors questioned “the wisdom of the abortion laws in Canada and [asserted] that a woman has an unfettered right to choose.”9 The appellants argued that s.251 conflicted with s.2(a), s.7, and s.12 of the Charter of Rights and Freedoms, which guarantee freedom of conscience, security of the person, and the right not to be subject to cruel and unusual punishment or treatment, respectively. They also argued that it was inconsistent with the equality clause s.1(b) of the Bill of Rights. The trial judge dismissed the argument and the Ontario Court of Appeal dismissed the appeal. The three doctors were eventually acquitted by a jury. The Crown appealed the acquittal and the doctors cross-appealed. The Court of Appeal set aside the appeal and asked for a new trial. The Supreme Court asked a series of seven questions regarding the constitutionality of s.251, and came to a 5:2 decision. It was determined that s.251 was unconstitutional by s.7 of the Charter, as s.251 “clearly interferes with a woman’s physical and bodily integrity. Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference.”10 It is important to the investigation to note that Bertha Wilson concurred with the decision.11


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Post-Charter Findings Though the decision was split, the female judge came down on the side of women’s rights. When compared to the case evaluated in the previous section of the investigation, it becomes obvious that women’s rights were much more heavily weighted in the Court’s decision making process after the introduction of the Charter of Rights and Freedoms. There is a marked improvement between the pre- and post-Charter eras when it comes to the upholding of women’s rights in the Supreme Court of Canada. However, it will be seen once the following case is examined that women’s issues are better taken into account when more women are present on the Court. While the Charter of Rights and Freedoms had a real and visible impact on decisions regarding women’s issues, the introduction of more female judges further solidified women’s rights in Canada.

Increased Number of Female Justices This section will examine the case of Public Service Alliance of Canada v. Canada Post Corp.. The case involved four women on the Court’s bench; note that this is not a majority, but the most significant proportion of the cases available. The evaluation of the case, combined with a comparison to the two previously explored periods, will be decisive in determining the conclusions of this examination. Public Service Alliance of Canada v. Canada Post Corporation In 2011, the Supreme Court of Canada heard the Public Service Alliance of Canada v. Canada Post Corporation case, which was on appeal from the Federal Court of Appeal. The case was heard by all nine judges, including four women (McLachlin, Deschamps, Abella,


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and Karakatsanis). The issue before the Court was one of a wage gap between two groups of Canada Post workers. The primarily female clerical workers were paid less than a predominantly male group of Postal Operations workers.12 An examination of the type of work each group performed confirmed that the required skills and demands of each job was of equal value. The Chief Justice spoke for the unanimous panel of judges stating they “would allow these appeals, with costs to Public Service Alliance of Canada in this Court and below.�13 Consequently, Canada Post was ordered to pay out $150 million dollars in damages, the value of half of the wages lost as a result of the discrimination against the female-dominated group of workers. It was determined that only half the wages would have to be compensated in order to account for possible uncertainties in determining the exact amount of the loss that they incurred. Findings on the Post-Charter Era and Increased Number of Female Justices In the Public Service Alliance of Canada v. Canada Post Corp., the drawback was that only half of the lost pay was recovered (for reasons explained above). A larger payout would have been more appropriate to fully compensate lost wages due to a gendered pay gap. Overall, the needs of the appellants were met with far more understanding when more women sat on the Court. Of course, the decision presented in this section was not entirely satisfactory; the female Canada Post employees were only compensated in half. However, the greater proportion of female justices had obvious effects in the decision making process of cases. Certainly, the fact that female justices held a minority in means that the male justices also played a role. Although the Chamber discussions are private, the results of


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these cases, compared to the previous ones, suggest that the female justices may have been able to influence the male judges’ decisions. A shift in popular opinion, or a greater understanding of women’s issues at the time may have also influenced the male judges’ decision making.

Conclusion Although the introduction of the Charter of Rights and Freedoms was significant in positively influencing the way that gender and sexuality cases were decided in the Supreme Court of Canada, it was not as significant as the increase in proportion of female judges on the Court. The pre-Charter Court seemed to mitigate the rights offered by the Bill of Rights by re-categorizing the cases as something other than women’s rights cases. The time in history after the introduction of the Charter did not see the same lack of understanding of women’s issues, but still the Court did not seem to completely grasp the full effects of women’s issues in all areas of life. Of the periods examined, it was only after the entrenchment of the Charter and having female justices fill occupy half the bench that greater empathy was exhibited towards women’s issues.


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Notes Canada, Supreme Court of. “Creation and Beginnings of the Court.” Supreme Court of Canada. February 15, 2018. https://www.scc-csc.ca/court-cour/ creation-eng.aspx. 2 Attorney General of Canada v. Lavell - SCC Cases (Lexum). https://scc-csc. lexum.com/scc-csc/scc-csc/en/item/5261/index.do. 3 Ibid. 4 Branch, Legislative Services. “Consolidated federal laws of Canada, Canadian Bill of Rights.” Legislative Services Branch. February 26, 2018. http://laws-lois. justice.gc.ca/eng/acts/C-12.3/FullText.html. 5 Attorney General of Canada v. Lavell - SCC Cases 6 Branch, Legislative Services. “Consolidated federal laws of Canada, Indian Act.” Legislative Services Branch. February 26, 2018. http://laws-lois.justice.gc.ca/ eng/acts/i-5/. 7 Branch, Legislative Services. “Consolidated federal laws of Canada, Access to Information Act.” Legislative Services Branch. February 26, 2018. http:// laws-lois.justice.gc.ca/eng/Const/page-15.html. 8 Tyler, Tracey. “Bertha Wilson, 83: First Female Supreme Court Justice.” Thestar.com. May 01, 2007. Accessed March 21, 2018. https://www.thestar.com/ news/2007/05/01/bertha_wilson_83_first_female_supreme_court_justice.html. 9 R. v. Morgentaler - SCC Cases (Lexum). https://scc-csc.lexum.com/scc-csc/ scc-csc/en/item/288/index.do. 10 Ibid. 11 Ibid. 12 Stewart McKelvey. Accessed December 02, 2016. http://www.smss.com/abcnewsletter/AEC/AECNewsletterWinter2012_Article3.html. 13 Public Service Alliance of Canada v. Canada Post Corp. - SCC Cases (Lexum). https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7975/index.do. 1


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The International Criminal Court Challenges to Prosecution and Effects on Domestic Politics in Sudan

Mallory Allan


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Abstract The International Criminal Court faces many challenges in its attempt to fulfill its mandate to prosecute criminal acts on the international plane. The crisis in Sudan provides an example of the ICC’s inability to effectuate its enforcement of arrest warrants due to a lack of state mobilization as a necessary mechanism. Furthermore, the relationship between the ICC and African states suffers from the latter who criticizes the Court for its disproportionate focus on African states. In this paper, I will explore how the relationship between both the Court and African states is imperative to the success of the implementation of its mandate.

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his essay will aim to explore the challenges the International Criminal Court (ICC) faces in prosecution by providing an example of the enforcement gap, shown through the inability to effectuate arrest warrants with a case study in Sudan. This essay will also explore the unintended effects of the ICC on the domestic politics in Sudan, and provide evidence as to how the ICC’s involvement was ineffective. Paradoxically, ICC involvement has led to many negative consequences within the domestic politics of Sudan, and an overall sentiment of ICC victimization. Since its inception, the ICC has faced major criticism for being preoccupied with African cases. One plausible explanation for this disproportionate focus on African states is the enforcement gap and the structural inequalities of the international system. Due to the fact the ICC lacks any police force or enforcement mechanism, it is difficult to investigate international crimes and apply the same standards unilaterally.

Inability to Effectuate Arrest Warrants When the ICC was first established in 2002, many states were reluctant to cede power to this supranational organization.1 However, despite 124 states (34 of these from Africa) ultimately ratifying the Rome Statute, the ICC has yielded less power than anticipated. One major source of this weakness has been the ICC’s inability to execute arrest warrants. The ICC is an international body with no police force, yet it is facing the challenge of ending impunity. Without an international police force, the Court is exceedingly reliant on the cooperation of state parties. The challenge arises because the individuals who are guilty of such crimes are often the same individuals the Court needs to cooperate in order for the Prosecutor to take action.


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The inability to effectuate arrest warrants is compounded by two factors: the lack of support from the Security Council and United Nations (UN), and the increasing lack of support from African states. The Role of the Security Council and UN Member States The Security Council has declared that the situations they refer to the ICC are matters of international peace and security. Under this assertion, one would conclude that the Security Council would continue to support the ICC under its Chapter VII enforcement powers. In principle, this should be the case, but the Security Council has made little effort to offer support beyond the referral stage. Once a case is referred to the ICC, UN member states are urged to comply with the measures the ICC takes in principle, but in practice there have been no consequences for UN member states that fail to do so. UN members who are not party to the Rome Statute account for approximately two-thirds of the world’s population, but more importantly, they also account for three quarters of its armed forces.2 Given the unlikeliness of a formal ICC police force, the support of the UN and its member states organized forces is critical in enforcing ICC decisions. The Role of African States (Party and Not Party) to the Rome Statute The issue of enforcing arrest warrants has become increasingly difficult as the perception of the ICC as a neo-colonial instrument has spread. The structure of the international hierarchy shields states with greater power from accountability; the Court’s promise to remain non-political and separate from this hierarchy has not been the case in practice.3 While the African leaders’ claims that the ICC is targeting them along racial or ethnic lines is subject to debate, it is


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clear the Court is systematically discriminatory due to the fact that it is unable to operate independently from the international structure. This disproportionate focus on African conflict and the perception of being unfairly targeted has caused many African leaders to voice their concerns regarding the legitimacy of the ICC, and to subsequently refuse to enforce the arrest warrants and indictments issued by the ICC, regardless of whether they are party to the Rome Statute. The situation in Darfur and Sudan’s lack of cooperation with the ICC illustrates this challenge of enforcement. The Situation in Darfur The conflict began in February 2003, when the Sudan Liberation Movement (SLM) and Justice and Equality Movement (JEM) rebel groups began fighting against the government of Sudan, whom they accused of oppressing Darfur’s non-Arab population through willful neglect of the regions occupied by these populations. The Sudanese army, government sponsored militia, and the opposition parties including the SLM and the JEM have committed widespread violations of international human rights law. The government responded by launching a counter-insurgency campaign that resulted in the indictment by the ICC of Sudan’s president, Omar Al-Bashir, for genocide, war crimes, and crimes against humanity.4 There is some debate as to whether Al-Bashir’s actions were carried out with an “intent to destroy, in whole or in part, a national, ethnical, racial or religious group,” and whether he indirectly committed acts of genocide.5 The Security Council has found insufficient evidence to come to this conclusion; however, the ICC has stated Al-Bashir should be held responsible for acts of genocide.


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The Enforcement Gap in Sudan In September of 2004, the Security Council ordered a commission to investigate and report on the situation in Darfur. The Security Council then passed Resolution 1593, and referred the case to the ICC, finding sufficient evidence of war crimes and crimes against humanity, but not genocide. The Office of the Prosecutor (OTP) launched a formal investigation in 2005.6 This referral proved problematic because the target state, Sudan, was not party to the Rome Statute, and therefore had not agreed to the OTP’s involvement. Unsurprisingly, the Government of Sudan was very unlikely to cooperate in an investigation targeting high officials within their government. By referring this case to the ICC without setting specific parameters in place as to what consequences other UN member states will face if they do not actively pursue ICC arrest warrants, the Security Council wass allowing UN member states to avoid such obligations, creating a larger enforcement gap for the ICC. Resolution 1593 makes it clear that states not party to the Rome Statute are subject to the jurisdiction of their own states or of the African Union (AU), unless they expressly waive their jurisdiction and announce otherwise. Resolution 1593 also makes it clear that the ICC will lack financial and political support, as it leaves support from UN member states as voluntary. A Security Council referral of a case to the ICC can extend jurisdiction and oblige non-state parties to cooperate, however, if the Security Council does not offer a credible consequence to states that fail to cooperate, states will not be obliged to comply with ICC provisions. The Security Council’s failure to enact provisions that apply to all UN member states when they referred the situation in Darfur to the ICC has led to little progress being made on the deliverance of justice


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and the inability of the ICC to effectuate its arrest warrant for AlBashir. In the case of Sudan, the UN has not pressured member states to enforce ICC indictments and resolve this issue of compliance.            “In addition to the March 2009 indictment, on July 12, 2010, the ICC issued another indictment against Bashir for genocide.”7 Formal arrest warrants were issued for these war crimes in 2012. Since the first indictments were issued, Sudan has rejected the provisions of Resolution 1593, and has been unwilling to cooperate with the ICC. The rejection of the ICC by African states is said to have its roots in the case of Sudan.8 Many African states fear similar actions may be taken against leaders within their own states or those of their allies. In response, several organizations have expressed their rejection of the ICC’s provisions and have been unwilling to execute the arrest warrants of Sudanese officials. In 2012, the Arab League expressed its solidarity with Sudan and rejected the decisions made against Al-Bashir. In this same year, the AU passed a resolution prohibiting its membership from cooperating with the arrest warrant, despite 30 AU member countries also being party to the Rome Statute and, therefore, obligated to arrest Al-Bashir. The AU’s decision is unsurprising, as Al-Bashir has engaged in anti-ICC rhetoric and stated the ICC’s arrest warrant against him was a political decision that is part of a new mechanism of neo-colonialism.9            To date, Al-Bashir has evaded arrest for 11 years. In June of 2015, South Africa requested it be exempt from executing the ICC’s arrest warrant due to its membership within the AU and the AU’s previous decision to not enforce the ICC’s warrants. South Africa reasoned that the Sudanese President was visiting under AU invitation for diplomatic purposes. This request was denied by the ICC, stating that South Africa was under an “obligation to immediately


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arrest and surrender” the President.10 Nonetheless, Al-Bashir was not detained at the AU summit, although he was forced to leave early due to pressure from human rights organizations. South Africa was one of the first African nations to voice its support of the ICC, thus their non-compliance, despite being party to the Rome Statute, marked a huge setback for the Court. In October 2016, South Africa became the first nation to formally withdraw from the Rome Statute, with Burundi and Gambia following in their footsteps.11           Without a police force or strong enforcement mechanisms, the ICC is unable to respond to South Africa’s non-compliance in arresting Al-Bashir. Some have claimed that Western countries such as the United States only began turning Darfur into an “international issue after the discovery of uranium and petroleum in Darfur”.12 The very essence of the ICC would dictate that it has the authority to arrest heads of state under its international jurisdiction, but without its own police force to execute arrest warrants or at second-best, the unyielding support of UN member states and all African states, it will continue to rely on the cooperation of the Government of Sudan and other states that Al-Bashir visits. Cooperation with the ICC is increasingly unlikely if the perception of the ICC as a political, rather than legal, instrument continues to unfold.

The Effect on Sudan’s Domestic Politics Is the ICC Triggering Domestic Accountability Mechanisms? Before the involvement of the ICC, Sudan was in the slow process of establishing mechanisms and courts with a goal of addressing impunity internally, though sitting heads of state would retain immunity. Al-Bashir had created a national Commission of Inquiry to investigate alleged human rights violations committed by armed groups


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in Darfur. However, it was the ICC’s involvement that appeared to have directly triggered the institutional proliferation of the Sudanese legal system.13 The Government of Sudan views the special courts and prosecution bodies that have been developed as an alternative to the ICC, in line with the principle of complementarity by which the ICC operates. From the Sudanese officials’ perspective, if they could demonstrate the ability to prosecute and address impunity domestically, it would render the ICC’s involvement redundant. There is an expectation that “scrutiny by, and advice from the ICC can enable or compel states to pursue accountability themselves, and where necessary to undertake legislative and judicial reform to enable that accountability.”14 The involvement of the ICC in Sudan has prompted the implementation of domestic accountability mechanisms at an unprecedented rate. However, the implementation of too many domestic accountability mechanisms at once has led to the action of none. Due to the fact these accountability mechanisms and avenues to end impunity domestically did not develop through their own accord, many of these bodies appear to be a façade.           In a race to prove its ability to handle the situation domestically, the Sudanese government established mechanisms that have not yet created their own dynamics and thus, do not deliver true accountability or justice. Judges and prosecutors have no incentive to operationalize the institutions created because they feel their creation was for the sole purpose of pleasing the international community. When asked about the creation of the Special Court, one Sudanese judge replied the court was created to “fool us, and the Americans.”15 Realizing these new domestic courts and committees may not be effectuating real change and present more of a policy change for appearance, international and non-governmental orga-


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nizations have not provided the adequate funding that would allow them to develop further and establish their own internal dynamics separate from the state. The Government of Sudan has denied allegations that these judicial mechanisms were created with the goal of challenging their admissibility before the ICC, and stated that their sole purpose was to deal with domestic issues.

Conclusion The case study of Sudan demonstrate how the enforcement gap poses a challenge to the prosecution of international crimes, and how the ICC’s extensive reliance on the cooperation of other states exacerbates this issue. The issue of enforcement was investigated through a specific manifestation of this problem: the inability to effectuate arrest warrants. The unintended effects of the ICC on the domestic politics in Sudan have been examined, and evidence has been provided as to how the ICC’s involvement proved ineffective in this state. The ICC’s involvement in Sudan triggered the proliferation of domestic accountability mechanisms that failed to effectuate real change or provide true accountability. The enforcement challenges that the ICC faces in prosecution need to be considered under the broader context of ICC-African relations and perceptions as to whether the ICC is an effective and nonpartisan institution. While the future of the ICC cannot be concluded based on this example alone, it is clear robust mechanisms for enforcement or state cooperation must be developed to remedy the challenges of the enforcement gap and ensure the ICC is able to fulfill its mandate. Furthermore, the ICC should focus on its external perceptions and relationships with African states, as this will likely determine its ability to fulfill its mandate of ending impunity in the coming years.


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Notes Bosch, David. Rough Justice: The International Criminal Court in a World of Power Politics. Oxford University Press, 2014. 2 Ibid. 3 Ibid. 4 Kastner, Philipp. The ICC: Savior or Spoiler?: Potential Impacts of International Criminal Justice on Ending the Darfur Conflict. Ottawa: Library and Archives Canada = Bibliothèque et Archives Canada, 2009. 5 Fussell, Jim. Rome Statute of the International Criminal Court (Articles 1 to 33)- Prevent Genocide International. http://www.preventgenocide.org/law/icc/ statute/part-a.htm. 6 Ssenyonjo, Manisuli. 2009. The International Criminal Court and the Warrant of Arrest for Sudan’s President Al-Bashir: A Crucial Step Towards Challenging Impunity or a Political Decision? Nordic Journal of International Law. 78 (3): 397-431. 7 Jamshidi, Maryam. “The enforcement gap: How the International Criminal Court failed in Darfur.” | Al Jazeera. March 25, 2013. http://www.aljazeera.com/ indepth/opinion/2013/03/201332562714599159.htm. 8 Vilmer, Jean-Baptiste Jeangène. 2016. The African Union and the International Criminal Court: counteracting the crisis. International Affairs. 92 (6): 13191342. 9 Ssenyonjo, The International Criminal Court and the Warrant of Arrest for Sudan’s President Al-Bashir: Nordic Journal of International Law. 10 International Criminal Court. Assembly of States Parties. “The President of the Assembly calls on States Parties to fulfill their obligations to execute the Arrest warrants against Mr. Al Bashir.” News release, June 13, 2015. Accessed March 21, 2017. https://www.icc-cpi.int/Pages/item.aspx?name=pr1117. 11 Vilmer. The African Union and the International Criminal Court. International Affairs. 12 Ssenyonjo, The International Criminal Court and the Warrant of Arrest for Sudan’s President Al-Bashir: Nordic Journal of International Law. 13 Kendall, Sara, and Sarah Nouwen. “Representational Practices at the International Criminal Court: The Gap between Juridified and Abstract Victimhood.” SSRN Electronic Journal, 2013. doi:10.2139/ssrn.2313094. 14 Chandra L. Sriram and Stephen Brown. Kenya in the Shadow of the ICC: Complementarity, Gravity and Impact. International Criminal Law Review vol 12, 2012, pp. 21. Koninklijke Brill N.V., Leiden, The Netherlands. DOI: 10.1163/157181212X633361 15 Kendall and Nouwen. “Representational Practices at the International Criminal Court.” 1


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Beyond Consent Feminist Legal Solutions For Sexual Violence

Paniz Khosroshahy


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Abstract In this paper, I challenge the prevailing ‘consent model’ of addressing sexual violence within the law. I will first reconstruct the consent framework espoused by Canada’s Criminal Code, and will then demonstrate these models’ inefficacies in accounting for a case study. I identify the following problems with the consent models: a) not considering the impact of systemic sexism and inequality on the occurrence and prevalence of sexual assault; b) failing to respond to challenges posed by intoxication and negligence; c) perpetuating neoliberal governance by engaging in a responsibilization discourse of male and female sexual citizenship; d) condoning incarceration as a suitable solution to sexual assault; and e) perpetuating racism and particularly racist notions about the dangerousness of racialized men toward white women. I conclude by proposing a different model for addressing sexual violence.

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n this paper, I will first discuss what I refer to as the “consent model” of approaching sexual assault in the Criminal Code of Canada. After discussing and briefly critiquing this model, I will show its failure in accounting for the R v. Al-Rawi — a 2015 case involving a cab driver acquitted of sexually assaulting a female passenger in Halifax. To explain and understand this case, I will use insights from Lise Gotell, Janine Benedet, Elizabeth Sheehy, Constance Backhouse, and Patricia Hill Collins. To close, I will briefly put these scholars into conversation in order to shape what I consider to be a feminist legal approach to sexual violence. Overall, I will argue that the consent model as framed in the Criminal Code fails to account for the complexities and realities of sexual violence, and envision a different model, informed by the aforementioned scholars’ work, to legally address sexual violence.

Canada’s Criminal Code The passage of Bill C-127 in 1983, marked the first set of sweeping reforms to Canadian sexual assault laws. Prior to 1983, “sexual offences” were categorized as either “rape” — always enacted by a man against a woman to whom he was not married — or an “indecent assault” — a gender-neutral, non-intercourse sexual act that involved reduced punishment if enacted against women.1; 2 With C-127, sexual assault was categorized under “Offences Against the Person and Reputation,” and similar to general types of assault, it was now considered a three-tiered crime, each level increasing in gravity. Gender indications were also purged from the Criminal Code, as was the requirement for complainants to present corroborating evidence. Sexual assault now included an array of offences beyond intercourse, the statute of limitations on claims was abolished, and introduction


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of sexual history was restricted under “rape shield” protections offered by the reforms. Less than a decade later in 1992, the newly-adopted Bill C-49 amended the Criminal Code further by introducing several consent-based provisions.3 Now, consent was defined as the “voluntary agreement of the complainant to engage in the sexual activity in question,”4 and it could not be obtained through “the exercise of authority”5 or “abusing a position of trust, power or authority”.6 Furthermore, claiming to have mistakenly considered consent to be present was deemed unacceptable if such a mistake was caused by “self-induced intoxication,” “recklessness and wilful blindness,” or if such a mistake was made without having taken “reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”.7 By requiring initiators to secure consent, Canadian law effectively adopted an affirmative consent model.8 Later, in R v. Ewanchuk, the majority found that if the judge found “an air of reality” to the claim of “honest mistake,” it should be left to the jury to determine if the accused had taken “reasonable steps” to secure consent.9 As the judgement read, “Whether the accused took reasonable steps is a question of fact to be determined by the trier of fact.”10

R v. Al-Rawi: “Clearly, a drunk can consent” In 2015, a Halifax police officer found a 26-year-old woman, half-naked and unconscious, in the back of a cab, next to the driver who had his pants down and his zipper undone. The woman said that she had been drunk and did not remember getting into the taxi.11 In 2017, the driver, Bassam Al-Rawi, was acquitted from a charge of sexual


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assault by Judge Greg Lenehan. In discussing this case through the Criminal Code’s consent model, I will also discuss broader societal factors implicated in sexual assault, such as neoliberalism, prisons, and race.

Neoliberal Governmentality According to Wendy Brown, neoliberal governmentality is “the extension and dissemination of market values to all institutions and social actions, with all dimensions of human life cast in terms of market rationality”.12 As well, as a cost-saving measure, such a form of governance involves the delegation of responsibility. For criminals or potential criminals, neoliberalism has meant “responsibilization,” or being transformed from “deviant citizens [to] become ‘ideal’ non-deviant, neoliberal citizens: that is to say, rational, risk-calculating individuals who actively aspire to full, law-abiding social participation”.13 The law in a neoliberal state, according to Gotell, has done more than merely differentiate between rape and sex, or a rapist and a normal man; it has created new subjectivities by “prescribing normative heterosexuality, and privileged forms of masculinity and femininity,” to create responsible and deviant sexual citizens.14 Rape is no longer seen as a result of men’s biological urges; now, according to the logic of responsibilization, a man ought to seek consent from his sexual partners.15 Rape shield laws, restricting the use women’s past sexual history as outlined in the Criminal Code, render women’s chastity—once a requirement to establish morality and innocence—almost irrelevant. Instead, the responsible female subject engages in risk management by not getting raped: she should not get wasted, leave drinks unattended, or go home with strangers.16 Gotell asserts that under neoliberal governmentality, re-


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sponsible male and female subjects ought to foresee sexual assault, exercise vigilance by asking for consent, and avoid risk, respectively. As a result, sexual assault has become a mere “failure of responsibilization, while the power relations that define sexual violence are obscured.”17

The Catch-22 of Intoxication Judge Lenehan’s entire judgement is based on the complaint’s lack of responsibility and her inability to remember this irresponsibility due to intoxication—constituting even more irresponsibility. As Gotell writes, “intoxication marks a critical deviation from the rationalized and responsibilized norms of the explicit consent standard. Intoxicated complainants can be constructed as defying standards of sexual safekeeping by placing themselves at risk.”18 Indeed, that is precisely how Lenehan views the complainant. He opens his ruling with a list of things that the complainant, irresponsibly, did not remember, concluding, “She doesn’t recall any of that because she was drunk.”19 Lenehan mentions that he believes Al-Rawi was “engaging in or about to engage in sexual activity with a woman who was incapable of consenting.”20 Similarly, he agrees that an unconscious or severely intoxicated person is incapable of consenting. Prior to getting in Al-Rawi’s cab, however, the complainant “had been able to communicate with others, […] she had appeared to make decisions for herself, however unwise those decisions might have been.”21 Hence, she had been conscious at some point, and it was unclear when she had lost consciousness. Lenehan could not determine, he said, whether the complainant passed out before or after the sexual act, and because the complainant was intoxicated, she could not testify to the absence of consent. “A lack of memory does not equate to


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a lack of consent,” he declared in his ruling.22 Taking a ‘consensual until proven otherwise’ stance, the Crown, Lenehan ruled, had failed to demonstrate non-consent. According to Benedet, Lenehan’s reasoning in R v. Al-Rawi is not an anomaly. Having conducted a survey of court decisions on sexual assault cases involving intoxication, Benedet writes that judges are only willing to rule non-consent in two cases: either when the complainant has been involuntarily severely intoxicated — and has preferably but not necessarily entered a state of unconsciousness — and when the complainant has been voluntarily intoxicated, strictly to the point of unconsciousness.23 This unstated requirement is troubling for two reasons. First, “voluntary intoxication is not the same as voluntary consent”; when one is incapable of consent, the reason for incapacity is irrelevant.24 Secondly, most cases of sexual assault do occur as a result of voluntary intoxication short of unconsciousness, and the courts’ sexist beliefs about ‘legitimate intoxication’ denies the majority of complainants a fair conviction.25 In Al-Rawi, since the bar was set at unconsciousness, a defence of mistake of fact to the complainant’s consent was never necessary: since the complainant had lost consciousness during the sexual act, the Crown was obligated to prove that the complainant passed out before consenting, and according to Lenehan, it was unable to.26 For the sake of the argument, we can grant that another application of the Criminal Code’s consent model may not have condoned Lenehan’s extreme view of incapacitation. So let us suppose Lenehan had agreed that the complainant, in her state of intoxication, could not have consented. However, when a complainant cannot confirm or deny an accused’s version of events due to intoxication, Sheehy writes, the defence of mistake of fact is often accepted.27 In fact, de-


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fendants often “claim that women fall asleep in the middle of consensual sexual contact; or they protest that they were unaware that the women had passed out; or they ask us to believe that women ‘come on’ to them while unconscious […].”28 This catch-2229 — too drunk to have consented, too drunk to remember not having consented — makes the proof of non-consent in case of the complainant’s intoxication very difficult.30 Even if the crown had successfully proved non-consent, given Lenehan’s remarks about the complainant’s irresponsible intoxication, it is not too hard to imagine that a defence of mistake of fact may have rested well with him. One may claim that a man’s false and arbitrary claim of mistake of fact is prevented with the Criminal Code’s “reasonable steps”31 requirement; after all, the aim of this provision was to target men who claim a mistake of fact while having made no effort to secure consent. However, “reasonable steps” are only expected to be taken according to “the circumstances known to the accused at the time,” and are hence dependent on the complainant’s subjective view of the situation.32 As Sheehy writes, the “reasonable steps” requirement “emphasizes the accused’s actual knowledge, as opposed to what he should have known.”33 Such a view of negligence, according to Sheehy, reinforces “women’s inequality by failing to condemn rape by ‘honest’ men”.34 More broadly, the requirement of “circumstances known to the accused at the time,” is problematic in and of itself. As Anderson writes, men often conceive of sexual circumstances very differently than women do, and that a negligent perception of “the circumstances […] at the time,” leads to women “being negligently sexually penetrated without [their] consent,” and that “remains a grave harm”.35; 36


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The Questions of Prisons and Race The aftermath of Al-Rawi’s acquittal was similar to those of other high-profile sexual assault trials, such as that of Jian Ghomeshi or Brock Turner, which ended in acquittal or minimal punishment: widespread backlash, petitions to remove the judge from the bench, and calls for the incarceration of the accused.37 Backhouse urges feminists to, when it comes to punishment for sexual offenders, look beyond incarceration and toward restorative justice options.38 Prisons cannot, according to Backhouse, constitute a feminist approach to addressing sexual assault; they are “racist, homophobic, inherently violent,” where racial minorities as well as mentally ill and low-income people are overrepresented and are themselves at risk of being sexually assaulted.39 “If we are against rape, we are against all rape. If we are against violence, can we advocate sending offenders to prisons that are steeped in brutality, where lawlessness reigns supreme?”40 There are reasons, according to Backhouse, that turn people into sexual offenders, and the society owes these people just as much as offenders owe their victims. A feminist response to sexual violence should move beyond vengeance and public shaming. If we believe that sexual violence is a systemic issue, Backhouse writes, we cannot, logically, criminalize individuals to solve the problem. “How can we develop a penalty that goes to the root of the act, attacking the causes of sexual assault rather than the symptoms?”41 A particular problem with current approaches to sexual assault is that, as Bennett Capers writes, “in attempting to eradicate sexism in rape laws, feminist scholars have entrenched an approach to analyzing rape allegations that is, if not overtly racist, very much racialized.”42 According to Backhouse, Canadian sexual assault laws


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and trials have been, historically, steeped in racism, and racialized men have often been convicted for crimes for which white men would go free.43 “Racism often made it easier for victims assaulted by racialized men to report the crime, for police to lay charges, for Crown attorneys to prosecute, and for judges and juries to convict.”44 In fact, Al-Rawi’s lawyer suggested that his client had been the victim of racism, telling the press that “an alarming amount of the discussion has perpetuated the grotesque stereotype that Mr. Al-Rawi’s Arabic race and Muslim religion mean he is the type of person to sexually assault a vulnerable woman.”45 Based on experiential knowledge of living as a Muslim woman of colour in Canada, I know firsthand that racialized and Muslim people are blamed, villainized, and stereotyped as group for the actions of a few.

Conclusion In this paper, I have reconstructed the consent model advocated by the Criminal Code of Canada and demonstrated its inefficacies in accounting for a recent sexual assault case. The problems with the consent models, in short, are the following: a) not considering the impact of systemic sexism and inequality on the occurrence and prevalence of sexual assault; b) failing to respond to challenges posed by intoxication and negligence; c) perpetuating neoliberal governance by engaging in a responsibilization discourse of male and female sexual citizenship; d) condoning incarceration as a suitable solution to sexual assault; and e) perpetuating racism and particularly racist notions about the dangerousness of racialized men toward white women. To close, I would like to turn the criticism inwards: having demonstrated the inadequacies of the Criminal Code in accounting for R v. Al-Rawi, I urge feminists to look beyond legislation. I urge feminists


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to interrogate the ways they have, as Capers suggests, replaced sexism with racism. I urge feminists to move beyond preambling their speeches with “women of colour are at higher risk of experiencing sexual assault,�46 and question who they consider worthy of being scapegoated for the flaws of rape culture. I urge feminists to ask themselves: why is it that they often become particularly outraged with the Al-Rawis, Cosbys, Ghomeshis, and Uruyars? Are there not enough men of colour already behind bars? Who is supporting racialized families when their husbands and fathers and sons serve time?


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Notes An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, SC 1980-81-82-83, c 125, [Criminal Code]. 2 Branch, Legislative Services. “Consolidated federal laws of Canada, Criminal Code.” Legislative Services Branch. February 26, 2018. http://laws-lois.justice. gc.ca/eng/acts/C-46/. 3 An Act to Amend the Criminal Code (sexual assault), SC 1992, c 38 [Criminal Code]. 4 R.S.C. 1985, c. C-46, s. 273.1(1) [Criminal Code]. 5 Ibid., s. 265 (3d). 6 Ibid., s. 273.1(2c). 7 Criminal Code s. 273.2 8 By affirmative consent, I refer to the view that parties to sexual activity ought to engage with explicit, voluntary and informed agreement. 9 R v. Ewanchuk, [1999] 1 SCR 330 [Ewanchuk], par. 60. https://scc-csc.lexum. com/scc-csc/scc-csc/en/item/1684/index.do. 10 Ibid. 11 “Judge Gregory Lenehan acquitted cab driver Bassam Al-Rawi of sexual assault,” CBC News, 7 March 2017. 12 Brown, Wendy. “Neoliberalism and the end of Liberal Democracy.” In Edgeworks: Critical Essays on Knowledge and Politics, (Princeton, NJ: Princeton University Press: 2005): 40. (quoted in Lise Gotell, “Rethinking Affirmative Consent,” 874.) 13 Phoenix, Jo, and Laura Kellym. “‘You Have to do it for Yourself’: Responsibilization in Youth Justice and Young People’s Situated Knowledge of Youth Justice Practice.” British Journal of Criminology 53, no. 3 (2013): 425. 14 Gotell, Lise. “Rethinking Affirmative Consent in Canadian Sexual Assault Law: Neoliberal Sexual Subjects and Risky Women.” Akron Law Review 41, no. 4 (2015): 875. 15 Ibid., 879. 16 Gotell, Lise. “Third-Wave Anti-rape Activism on Neoliberal Terrain: The Garneau Sisterhood.” In Sexual Assault in Canada: Law, Legal Practice, and Women’s Activism (Ottawa : University of Ottawa Press, 2012): 252. 17 Gotell. “Rethinking Affirmative Consent.” Akron Law Review, 898. 18 Ibid., 886. 19 “Judge Gregory Lenehan acquitted cab driver Bassam Al-Rawi of sexual assault,” CBC News, 7 March 2017. 20 Ibid. 21 Ibid. 1


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Ibid. Benedet, Janine. “The Sexual Assault of Intoxicated Women.” Canadian Journal of Women and the Law 22, no. 2 (2010): 9. 24 Ibid. 25 Ibid. 26 Such a requirement arises from case law: in R. v. Easau, the majority found that the complainant’s lack of memory does not relieve the Crown of its obligation to prove non-consent. R v. Esau. 2 S.C.R. 777. Supreme Court of Canada.1997, par. 23. 27 Sheehy, Elizabeth. “Judges and the Reasonable Steps Requirement: The Judicial Stance on Perpetration Against Unconscious Women.” In Sexual Assault in Canada: Law, Legal Practice, and Women’s Activism, (Ottawa, ON: University of Ottawa Press, 2012): 488. 28 Ibid. 29 A “Catch-22” is “a problematic situation for which the only solution is denied by a circumstance inherent in the problem or by a rule.” “Catch-22.” Merriam-Webster. https://www.merriamwebster.com/dictionary/ catch-22. 30 Benedet. “The Sexual Assault of Intoxicated Women.”, 17. 31 Criminal Code s. 273.2 (b) 32 Ibid. 33 Sheehy. “Judges and the Reasonable Steps Requirement.”, 492. 34 Ibid., 491. 35 Anderson, Michelle. “Negotiating Sex.” Southern California Law Review 78 (2005): 1471. 36 Estrich, Susan. “Rape.” Yale Law Journal 95, no. 6 (1986): 1104. 37 Ryan, Haley. “Calls for removal of Judge Lenehan mount, official complaint made to Chief Justice.” Metro News, 3 March 2017. 38 Backhouse, Constance. “A Feminist Remedy for Sexual Assault: A Quest for Answers.” In Sexual Assault in Canada: Law, Legal Practice, and Women’s Activism (Ottawa : University of Ottawa Press, 2012): 725. 39 Ibid., 733. 40 Ibid. 41 Ibid., 737. 42 Capers, Bennett. “The Unintentional Rapist.” Washington University Law Review 87, no. 6 (2009): 1367. 43 Backhouse, Constance. Carnal Crimes: Sexual Assault Law in Canada, 19001975, (Toronto: Published for the Osgoode Society for Canadian Legal History by Irwin Law, 2008), 246. 44 Ibid. 22 23


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Csanady, Ashley. “Judge’s acquittal of Halifax cabbie may be based on ‘legally correct’ if ‘unpopular’ legal principles.” The Financial Post, a division of Postmedia, Mar. 9, 2017. Accessed 15 April 2017. 46 In my experience of feminist organizing at McGill, often speeches about sexual violence begin with this preamble / disclaimer without any critical interrogation of the role of race in sexual violence later in the speech or in organizing. 45


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Evaluating the Augustan Marriage Laws Lex Julia et Papia

Marina Martin


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Abstract The Augustan marriage laws were not directly effective in curbing immoral behavior in the Roman Principate. Despite this, Lex Julia et Papia remained relevant throughout Roman literary tradition, and continue to be considered a facet of Augustan policy. These laws demonstrate an instance of Augustan precedent, establishing the Emperor as dominant, even in the domestic sphere. The dramatic demographic shift that occurred following the institution of this legislation indicates that Lex Julia et Papia allowed for a level of social mobility in a culture otherwise rooted in conservative ideals, demonstrating that the effects of the legislation transcend its accomplishment of its original intentions. This paper argues that these laws contributed to the transformation from Republic to Empire, and that evaluation of these laws should consider the values that Lex Julia et Papia created and changed in Roman society.

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he Augustan period redefined the Roman state as it transitioned from Republic to Empire. A key avenue for this redefinition was the creation of moral legislation that formally dictated rules for societal customs and left a lasting cultural legacy. Furthermore, moral legislation leaves a certain cultural legacy, as Milnor notes: “the act of legislation is not unlike the creation of a historical narrative”.1 This paper will explore Lex Julia et Papia, in conjunction with other Augustan institutions, as a means to examine broader trends in the Roman historical narrative, including demographic shifts in the Roman aristocracy. The Augustan marriage laws, although perhaps not having been successful in curbing perceived immoral practices and preserving the Roman elite class, were indeed effective in redefining Roman society. The Lex Julia et Papia demonstrates a turning point in Roman history, and should be measured not by fulfilment of its intended goals, but rather by the lasting social customs it instituted.

Intent In the Res Gestae, Augustus himself regarded the legislation as restoring “many of the good practices of our ancestors that were dying out in our time,” however, there is no scholarly consensus on the intentions behind the Lex Julia et Papia.2 Kemezis argues that the objective of the laws was to correct the societal problem of immorality, and Treggiari suggests that the laws were an engagement with social engineering to benefit the Augustan image.3; 4 While Milnor asserts the plausibility of the practical preservation of the declining population argument, she also suggests that the marriage laws intended to undermine the power of the traditional aristocracy.5 McGinn describes Lex Julia et Papia as legislation intended to address


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practical societal issues such as a decreasing aristocracy, as well as to ensure that the right people hold office.6 Whatever the intention of the laws, following their institution, the aristocratic families of the Republic declined in influence even further over time, and immoral practices did not cease. With that in mind, it is interesting to consider this legislation as an Augustan redefinition of Roman society by formalizing and defining conservative sensibilities, as well as its role in major developments in Roman demography and class distinction. Evaluation of the laws’ success, then, does not necessarily depend on its intentions and the measure of the success of any legal institution is its lasting legacy.

Reception During the transition from Republic to Principate, Augustus needed to alter the sentiments of a society deeply rooted in republican tradition in order to successfully institute his monarchy. Whether inadvertently or otherwise, Augustus took advantage of the tradition-based republican system by using legislation to formally define societal elements previously governed by informal customs, recognizing the ability of law to alter societal norms. This allowed him to subtly remodel political institutions to fit his Principate without explicitly challenging societal norms to the point of long-term rejection. However, regardless of subtlety, any fundamental change or intrusion of the State was met with immediate conservative opposition. Suetonius, writing about one hundred years after the institution of Lex Julia et Papia, wrote that the equestrian class demanded the total repeal of the legislation until penalties were lessened and benefits increased. This suggests that, at least at the time of Augus-


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tus, elites could get away with refusing to comply with imperial law, implying that a “stringent change,”7 such as Lex Julia et Papia, was not initially taken as seriously as deeply-rooted cultural sentiment.8 Tacitus, writing around the same time as Suetonius, alludes to informers invading domestic space and reporting private, noncompliant activities to the state, inspiring the image of an intrusive and invasive imperial government. These accounts both suggest that the Lex Julia et Papia were not well-received.9 Aulus Gellius described the laws circa 150 AD, drawing contrast between the grounds for high rank and respect in the Republic, and those following the inception of Augustan legislation.10 Yet, Gellius still notes an understanding of the reasoning behind the laws, as he refers to the practicality of encouraging procreation among Rome’s elites by writing that children were a “necessity for the State”.11 That the laws were immediately unpopular was also clear in Cassius Dio’s account, but his tone suggests that his own attitude toward the laws differs from that of Suetonius or Tacitus.12 As a prominent senator writing approximately two hundred years after Lex Julia et Papia was passed, Cassius Dio’s perspective is that of one that had benefited in the Roman system as shaped by Augustan policy. It is not surprising then that he should be more accepting of the institutions surrounding the laws, such as imperial interference in domestic life.13 These primary accounts, when examined together, also imply gradual complacency with these institutions, which is prevalent in the accounts of the later authors. This development in the literary tradition surrounding the Lex Julia et Papia reveals that Augustan institutions were normalized and absorbed as the Principate developed.


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A Parallel Shift While it is evident that Lex Julia et Papia were not well-received by the Roman people, and the moral standards the legislation put forth were not adhered to even by Augustus himself,14 these laws had a profound impact on the Augustan social redefinition of Roman society. However, Lex Julia et Papia failed to maintain the aristocratic class as it was at the laws’ inception. This is made clear by examining Roman “statistics� that demonstrate a tremendous demographic shift following the Augustan period.15 The marriage laws can be highlighted as a complement to this shift; as the demography of the elite class shifted, the marriage laws established new institutions allowing for social mobility and liberation. Examination of senatorial records from the Late Republic reveals a stark increase in the number of politically active families, and a similarly stark decrease in the number of hereditary consulships. In the Late Republic, 71% of consuls had a father or grandfather who had previously served as consul.16 Following the reign of Augustus and the institution of Lex Julia et Papia, the patrician families of the Republic essentially met senatorial extinction, as the aristocracy was increasingly integrated with provincial elites. Under Augustus, 16% of senators were from Roman patrician families. This number drops to 4.5% under Nero, and then 1% in 96 AD.17 By the Flavian period, even the new patricians elevated through Augustan patronage had disappeared from political records.18 It is clear from these records that the Lex Julia et Papia did not succeed in terms of perpetuating the existing aristocracy, and that a substantial demographic shift occurred during the early Principate. Many scholars agree that aristocratic population decline was evident at the time of Augustus. Hopkins agrees that the marriage


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laws were instituted to address the failure of the aristocracy to regenerate itself, but also suggests that the laws specifically targeted the practice of willful infertility. Willful infertility, he argues, can be attributed to the aristocratic understanding that subdividing family property between several heirs diminished the social standing of future generations. Ideally, an elite family would have one heir, however, this meant running the risk that this heir might not survive to adulthood. This practice might account for the low hereditary succession rates demonstrated by Hopkins’ study.19 The Augustan marriage laws were unsuccessful in that, despite the reparations enforced for noncompliance, the aristocrats continued to act in the interests of their family legacy, which sometimes meant risking hereditary succession to preserve monetary social relevance.20 Whether because of aristocratic willful infertility or not, there was an increase in the number of families holding substantial power in Rome. That is to say, the Augustan marriage laws, although they may not have directly challenged custom, they indirectly encouraged behavior that allowed for significant social mobility.21 In addition to the dissolving influence of the patrician families of the Republic, social mobility during the time of the Augustan marriage laws can be demonstrated by the integration of provincial elites into the Roman political system. Demographic studies show that the senatorial aristocracy demonstrated increasing acceptance of provincials.22 The failure of the aristocracy to adequately perpetuate themselves, coupled with the failure of the marriage laws to sufficiently correct this issue, allowed for provincial elites to hold senatorial seats left vacant by the traditional aristocracy.23 Regardless, it was in the interest of the emperors to elevate provincials, because the Roman system relied on support of the provincial elite.


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The emperors encouraged competitive patronage in exchange for political offices, and the dwindling Roman elite could not keep up with the cost of maintaining imperial favor. This monetary competition also indirectly put a check on the political capital that any single elite family could amass. The financial strain of such pursuits could easily lead to a family’s failure to meet income requirements for the upper class, eliminating threats to an emperor’s legitimacy. As the turnover of senators increased, the influence of senatorial offices diminished. Competitive patronage afforded the possibility of substantial social advancement to local elites, and coupled with the institutions of the marriage laws, demonstrates an Augustan trend of social mobility into and out of the elite classes. Lex Julia et Papia clearly failed to adequately preserve a ruling class, so the ensuing demographic shift allowed by this failure can be considered an impact of the laws.

Social Implications The marriage laws were also seemingly unsuccessful when it came to reviving the idealized Roman mores of the Republic. It is clear that formalizing social taboo and officially outlawing adultery did not stop these practices. However, by promoting conservative ideals, the laws were able to integrate new changes in societal custom. McGinn even suggests that this prohibition of specific activities, like marriage between freedwomen and senators, encouraged the societal acceptance of practices like concubinage and the marriage of non-senatorial elite to freedwomen.24 These practices carried serious societal implications, like an increase in social mobility, notably for women. Treggiari notes that the law encouraged upper-class men to marry earlier, which improved the chances of a woman receiving a


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good match, especially if the aristocracy was facing a gender imbalance.25 These laws were designed to “level the matrimonial playing field�,26 and provided social mobility for freedwomen and liberalized the taboo practice of concubinage.27 The laws also altered basic cultural sentiment, replacing the deeply-rooted deference to elders with the new institution of deference to efficient procreators. As these laws remained relevant hundreds of years after their inception, they established a lasting cultural legacy. Perhaps the greatest legacy left by Lex Julia et Papia were its contribution to the normalization of imperial dominance in Roman society. By failing to alleviate the demographic shift it appeared to directly challenge, the Lex Julia et Papia also allowed for an increasing turnover in the senatorial families, in turn, allowing for the integration of provincial elites into the Roman aristocracy. The Roman society of the Republic was dominated by a few very influential families, but under the Principate these families became increasingly politically irrelevant, in part due to this legislation. Formally defining the elite class independent of hereditary familial entitlements implies that the aristocracy could be open to permeation from outsiders, including freedwomen and concubines, along with provincial elites and elevated equestrians. With this in mind, one could suggest that the socially liberalizing institutions of the marriage laws not only failed to prevent the demographic shift discussed but actually contributed to it, as an increase in social mobility certainly added to the turnover in senatorial families. In addition, definitions are intended to be limiting, so in formalizing social distinctions, Augustus was also regulating the power of each social strata. This, along with competitive patronage, put a check on the amount of political capital any single family could amass, eliminating threats to Augustan authority, and


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setting the social precedent for subsequent emperors that political capital was reserved for the imperial family. Under Augustan legislation, the senate became a formality during the Principate, its powers divorced from its offices. The social implications of Lex Julia et Papia cannot be overstated; under the guise of “making Rome great again,� the laws redefined and regulated the Roman aristocracy to the point of complacency with imperial rule, allowed for significant social mobility among non-senatorial elites, and replaced old traditional sentiments with new formal honors and institutions. It is true, then, that the success of the laws was not in the moral institutions they protected, but in the societal institutions they shaped.

Conclusion Lex Julia et Papia did not revolutionize Roman moral values, nor did the legislation stop the processual demographic shift in the Roman aristocracy, as the original patricians of the Republic were no longer of political relevance by the Flavian dynasty. Consulships and senatorial seats were not determined by hereditary succession as they were in the Republic, and a high turnover of political office ensued. The Lex Julia et Papia were not successful in achieving their apparent intended goals of revitalizing the traditional elite and formalizing social mores. However, the legislation was certainly successful in setting societal precedent. The Lex Julia et Papia used conservative idealism to redefine societal custom, creating and remodeling the Roman historical narrative as it transitioned into the Principate. Legislation, to retreat to Milnor’s analysis, is not unlike creating a historical narrative.28 Lex Julia et Papia encapsulates a facet of the Augustan narrative, the institution of social change. These social


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changes are striking, considering the deeply traditional nature of Roman society. The fact that they survived the duration of the Principate is significant, especially since the intermarriage ban in the Twelve Tables only lasted five years. It is clear, then, that the success of these laws is demonstrated in the normalization of the values they created and changed.


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Notes Milnor, K. “Augustus, History, and the landscape of the law.” Arethusa 40 (2007): 7-23. 2 Augustus. Res Gestae Divi Augusti, translated by W. S. Davis (1913. Boston: The Roman Law Library), 8.5. 3 Kemezis, A. “Augustus the Ironic Paradigm: Cassius Dio’s Portrayal of the Lex Julia and Lex Papia Poppaea.” Phoenix 61 (2007): 270-285. 4 Treggiari, S. “Women in the Time of Augustus.” In Cambridge Companion to the Age of Augustus, by K Galinsky, (2005): 130-150. 5 Milnor. “Augustus, History, and the landscape of the law.”, 7-23. 6 McGinn, Thomas A.J. “Something Old, Something New...Augustan Legislation and the Challenge of Social Control.” Ancient History Bulletin 22 (2008): 1-32. 7 Tranquillus, Suetonius. “Life of Augustus” in The Lives of the Caesars, translated by J. C. Rolfe. (1913. Loeb Classical Library): 34. 8 Ibid. 9 Tacitus, Cornelius. The Annals: The Reigns of Tiberius, Claudius, and Nero, translated by J. C. Yardley (2008. Oxford World’s Classics): 3.25-28. 10 Gellius, Aulus. The Attic Nights, translated by John C. Rolfe. (n.d. Harvard University Press): 2.15. 11 Ibid. 12 Dio, Cassius. The Roman History: The Reign of Augustus, translated by Ian Scott-Kilvert (Penguin Classics, 1987): 54.16, 56.1-10. 13 Perhaps, Cassius Dio’s Severan perspective serving under Marcus Aurelius and Commodus alike allows him to be more understanding that a hereditary power may not always be in the interest of the state. 14 Kemezis, A. “Augustus the Ironic Paradigm: Cassius Dio’s Portrayal of the Lex Julia and Lex Papia Poppaea.” Phoenix 61 (2007): 270-285. 15 I recognize here that Roman senatorial records are not entirely reliable, but for the purpose of this paper, I accept them at face value as presented in Hopkins 1983, Hammond 1957, and McAlindon 1957. 16 Hopkins, Keith. Death and Renewal: Sociological Studies in Roman History. (Cambridge: Cambridge University Press, 1983): 57. 17 Hammond, Mason. “Composition of the Senate, A.D. 68-235.” Journal of Roman Studies 47 (1957): 74-81. doi:10.2307/298569. 18 Ibid. 19 For example, the percentage of consuls without consular ancestors after the death of Julius Caesar until the ascension of Claudius was approximately 50%. 20 Hopkins. Death and Renewal: Sociological Studies in Roman History, 195. 21 McAlindon, D. “Entry to the Senate in the Early Empire.” The Journal of 1


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Roman Studies 47 (1957): 191-95. doi:10.2307/298584. 22 Hammond. “Composition of the Senate.” 23 Hopkins. Death and Renewal: Sociological Studies in Roman History, 195. 24 McGinn, Thomas A.J. “Concubinage and the Lex Iulia on Adultery.” Transactions of the American Philological Association 121 (1991): 333-75. 25 Treggiari. “Women in the Time of Augustus.”, 130-150. 26 McGinn, Thomas A.J. “Missing Females? Augustus’ Encouragement of Marriage Between Freeborn Males and Freedwomen.” Historia 53 (2004): 200-208. 27 McGinn. “Concubinage and the Lex Iulia on Adultery.” 28 Milnor, K. “Augustus, History, and the landscape of the law.”


A McGill Pre-Law Students’ Society Publication | 2018

Profile for The McGill Pre-Law Students' Society

McGill Pre-Law Review 2018  

A McGill Pre-Law Students' Society Publication. For more information, please visit our website at www.mcgillprelaw.ca.

McGill Pre-Law Review 2018  

A McGill Pre-Law Students' Society Publication. For more information, please visit our website at www.mcgillprelaw.ca.

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