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This paper will examine the problematic location of authenticity in recent court cases that deal with the legacy of Indian Residential Schools in Canada. Between 1876 and 1986 the Canadian government ran a system of boarding schools for aboriginal children. Many of the thousands of aboriginal people who attended these schools have sued the federal government for physical and sexual abuse, negligence, breach of fiduciary duty, and significantly, loss of culture and language. Neither the courts nor the federal government will recognize loss of culture and language as a legal cause of action. While the courts have awarded damages for assault they have done so based on a calculation of what the aboriginal plaintiffs' lives would have been like minus their residential school experience. This is the "original position" that all tort proceedings seek to determine, and the courts have constructed these in ways that present aboriginal lives as already highly damaged and culturally compromised. In this paper I will examine the contradictory implications of arguing culture loss as a basis of legal redress. Aboriginal people are more often required to show that they have retained an authentic culture rather than that they have lost one; taking the loss of culture to court presents certain risks and reverses the burden of proof in problematic ways. I argue, however, that loss of culture and language is one strategy—with costs—for aboriginal people to make claims about the broader but less legally recognizable injuries of race and colonization. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper explores the way two federal systems, the EU and Canada, have undergone a shift to the rights model of disability in their approaches to social policy. It examines how the shift to a rights-model occurred in different ways, from a largely top-down process in the EU and largely bottom-up process in Canada, but resulted in comparable constitutional protections from discrimination. Focusing on disability is useful because, in comparison to other forms of anti-discrimination rights, disability rights would seem to constitute an unlikely (if not 'least likely') case. The paper will consider the implications the shift in the disability policy paradigm has for the spread of 'adversarial legalism' as a form of governance across the developed world. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper examines the role played by rule of law norms in contemporary Canadian church sanctuary incidents. These incidents generally involve unsuccessful refugee claimants who assert that their claims were denied in error. To avoid imminent deportation, sanctuary seekers request permission from faith-based communities to reside indefinitely within church buildings. Because the state is reluctant to undertake law enforcement activities within church buildings, sanctuary usually results in de facto stays of deportation. Faith-based communities offering sanctuary then seek to negotiate long-term solutions with immigration officials, often leading to discretionary grants of Canadian permanent residence. In this paper, I argue that Canadian church sanctuary practices can be understood as interventions by faith-based communities to correct errors emerging from a procedurally flawed official refugee determination system. I suggest that these interventions offer a legal pluralist model for effective civil society challenges to "legally exceptional" state border control governance -- i.e. governance that departs from regular rule of law norms. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper examines women's entry and advancement within French Canada's civil law tradition of a dual system of notaires and avocats within law practice. The two arms of the profession have developed along exclusive legal jurisdictions codified through law, contrasting professional structures, and separate content and styles of legal practice. Yet, this divisive profession shares a common foundation through law school and professional training, and their respective practices of law occasionally overlap and conflict in the competition for clientele, services, and professional status. Women have entered law practice in Quebec at a critical juncture in the transformation of the legal profession, and their entry coincides with the emergence of exclusionary processes both within and across these two corporations of law practitioners. The paper reports findings from a large-scale survey and a smaller sample of in depth interviews with both women avocates and notaires in Quebec. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Indigenous peoples in Canada have their own laws which continue to regulate their lives and have an important influence on other societies around them. This paper will argue that Canadian law schools could play an important role in facilitating the teaching of Indigenous laws. However, the paper will also contend that such teaching should not be undertaken unless it is done by appropriately trained people, in the proper setting, under the direction of Indigenous communities and leaders, and with the support of other key institutions in Canadian law. In this light, this paper will examine steps the University of Victoria Faculty of Law has taken to develop an Indigenous Law Degree. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The paper forms part of a collective biography on the first four women to sit as judges of the Supreme Court of Canada. Each has been a pioneer in her own way: Bertha Wilson (1982-1991) was the Court's first woman judge; Claire L'Heureux Dube (1987-2002) was its most openly feminist judge; Beverley McLachlin (1989-present) was the first woman to be named Chief Justice of Canada; and Louise Arbour (1999-2004), before and after her tenure at the Court, would be the first Canadian woman to assume positions of leadership in key international human rights institutions.The paper will draw these women together through their experiences at the Supreme Court. It explores how each saw herself as an individual, as a woman, and as a judge. It examines each woman's conception of rights, and the way that conception is reflected in her jurisprudence. In addition, it explores their perceptions of the Court, of the judge's role, and of law as an agent of change. Most of all, it considers the distinction they share, of being the Supreme Court's first women judges. In 2007, the year of the Charter's 25th anniversary, the paper for Berlin will focus on the way these four women contributed to and influenced our understanding of rights, including - but not limited to - the rights of women. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Based on research in both adult and youth courts across Toronto, Ontario, Canada this paper discusses my observations of the 'everyday' in the courtroom and how law in its formality is constituted amidst the everyday informalities within a legal domain. Socio-legal and/or legal consciousness research has categorically distinguished law from what is referred to as 'the everyday' characterizing the everyday as a lived reality of unproblematic, grounded experience, self-evident and taken-for-granted (Sarat & Kearns 1995:6). The law on the other hand, is seen as distanced from social life, and is characterized primarily by its abstraction and bureaucracy (Sarat & Kearns 1995). This paper focuses on recognizing and exploring the effects of the self-evident and taken-for-granted within what is considered a primarily legal domain. It will discuss how a snapshot of everyday life in court, consisting primarily of interactions (or lack thereof) between legal professionals/colleagues; including conversation and/or other informal social exchanges can leave the observer with the impression that the formal law of the courts may be reduced to fillable forms, legal text, data input into a computer, legal files, and recordings of proceedings. More broadly, this piece considers how the mundane and informal elements of the courtroom's 'everyday' may lead to different understandings of the law's role, and the forms it takes in ordering and influencing social life. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper will explore the multiple legal spaces existing in the South Saskatchewan River Basin ("SSRB") in relation to water law and governance. In the face of increasing competing demands over water as a result of climate change water law and governance takes on increased importance. The jurisprudential framework of water law and water institutions in the SSRB will be compared and contrasted against the construction of the governance and rules surrounding water by Canadian citizens, water stakeholders, and institutional employees based on ethnographic research. The premise of this research is critical legal pluralism, the difference between the jurisprudential positivist view of the law as based on precedent and well established objective legal rules versus the view of law as an institution and practice established and constituted by people, practices and decisions made in a fluid, dynamic, and ever changing manner.Canada's water law evolves over hundreds of years from many different sources and influences including the riparian water laws of Britain, where laws developed on a case by case basis in a land of relative water abundance. This archaic and rigid water law has been modified and adapted (to a certain extent) separately in both Saskatchewan and Alberta to meet the needs of the western Canadian situation; however many rules and principles remain. Complicated, intricate, jurisprudential constructions of the law can be made in each province. However, water is ubiquitous, traveling between arbitrary political borders. In times of water shortage, the rules of water governance are constructed and negotiated at a certain time and in a certain natural space in an inconsistent manner. These times and spaces will be explored based on research findings of a study of Institutional Adaptation to Climate Change in the SSRB and Chile. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper will examine the ways religious interests and religious groups become active in Canadian law in framing and regulating sexuality and sexual difference. 'Reasonable accommodation' risks lapsing into a situation in which the group will only be accommodated as long as it looks like the mainstream. In order to illustrate this danger I will focus on the ways in which sexual orientation, as a characteristic to be "accommodated" has been made to fit heteronormative ideals. While legal discourse supports equality rights based on sexual orientation, lived experience is such that homosexuals gain access, or are accommodated, when they 'look like' heterosexuals; when they are desexualized and depoliticized so that their difference is masked and they can fall under categories of normative sexuality. Through this lens, I will examine the ways in which law has the power to place sexual minorities in the context of citizenship in Canada. I argue that homosexuals, as a sexual minority group, in Canada are granted access to citizenship based on their conformity to heternormative ideals, or are otherwise displaced as the 'Other' to whom rights and benefits are not attainable. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Following the legal criticism of Monture (1995), this paper is a "first journey in decolonized thought" whereby the objective is to highlight and critique trajectories of case law concerning Indigenous citizenship and political "discernment" (Simpson, 2007). I am concerned with histories of displacement created by Canada's Indian Act, and the normative discourses of liberalism, sexism and state sovereignty into which colonial grievances of dislocation are now being situated (Turpel, 1989/90; Borrows, 1994, 1997; Christie, 2003). These discourses represent a form of structural violence toward Indigenous peoples because they encourage ways of thinking about citizenship and belonging in colonially divisive, racialized terms. Before citizenship injustices can be "undone" in what is now called Canada, it will be necessary to think seriously about the history of Indian policy and Indian Act legislation, early treaties and nation-to-nation agreements, the complex intersection of race and gender discrimination, and citizenship as this is defined by liberalism (Turner, 2006), the nation state, and by Indigenous or "sui generis" modes of thought (Henderson, 2002). ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The paper will report the incidence and patterns of civil justive problems and experience of respondents in dealing with justiciable problems. The psper is based on a 2006 national survey of civil justice problems in Canada. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In contrast to the evolution of the law of spousal support in many other western jurisdictions, Canadian law provides a very generous basis for post-divorce spousal maintenance payments. Rejecting the 'clean break" philosophy that has prevailed in many jurisdictions, the Supreme Court of Canada has interpreted the federal Divorce Act to recognize a broad role for spousal support not only in compensating spouses for economic disadvantages (i.e. loss of earning capacity) incurred as a result of the marriage, but also in ameliorating the economic hardship and need caused by loss of the marital standard of living (non-compensatory support). Yet Canadian law also emphasizes the highly discretionary, individualized nature of spousal support decisions. The result is a law of spousal support that is generous in principle, but confused, uncertain and contentious on the ground. Spousal support outcomes can vary significantly from one part of the country to another and from judge to judge. As a result, lawyers have difficulty advising clients and reaching settlements and many legitimate spousal support claims are abandoned because of the risks and costs entailled. This paper will discuss an innovative project initiated by the Canadian Department of Justice, and of which the author is a co-director, to develop a set of informal, advisory spousal support guidelines based upon and reflecting dominant outcomes in current practice. A set of draft guidelines, which was released in January, 2006, has already received appellate court endorsement and has begun to significantly permeate the daily practice of both lawyers and judges. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

From HIV/AIDS to breast cancer to asthma, citizens are increasingly using their ill status as grounds for social movement claims against the state and society. This paper compares the legal strategies adopted by opposing activist groups in Canada and the U.S. advancing an autism agenda, focusing on how legal subjects are constituted according to each view, and the types of legal strategies that are implicated in the construction of the autistic legal subject. One set of groups is appealing to the UN to have people with autism considered a national minority that should be protected from discrimination, while the other is trying to use the law to argue that the state has a duty to cover the costs of applied behavioral therapy, which many parents of autistic children believe can 'save' their children from autism. The first group, made up mainly of adult autistics, believes the therapy can be harmful and instead espouse the view that people with autism are 'neurodiverse'; they are hard-wired differently than the average person. 'Curing' autistic people, they argue, would amount to destroying their personalities. The second group, in contrast, believes that withholding access to this treatment to parents who can not afford the prohibitive cost, is discriminatory. Canadian activists have made this argument, albeit unsuccessfully, in Canadian courts, suggesting that it violates the principles of the Canada Health Act. Further, they claim that neurodiversity proponents are partly to blame for the court's decision against extending state funding for behavioral therapy. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

From Marx and Engel's characterization of the state and its apparatus as a tool of economic domination, to Weber's treatise on the role of law in facilitating capitalist development and expansion, the relationship between law and the economy has occupied a central and prominent place in socio-legal scholarship. But while early socio-legal scholars were responding to revolutionary changes in their economic period, there has been scant attention to the historic shift to the 'new capitalist economy' and its impact on law. Employment law provides an ideal arena for reigniting such investigation as it is in the domain of employment relations that the transition to the new economy has significant legal implications. When thinking about law and the economy in this context, certain asynchronies become apparent: new economic conditions have altered inputs into the legal system and new business logics have challenged traditional notions of the employment contract. In Canadian wrongful dismissal claims we have an opportunity to examine how judges grapple with the disjuncture between the assumptions and operations of economic organizations and those that guide legal process. With its emphasis on formal guarantees of continued employment or advanced notice of job loss to finance the search for comparable employment, Canadian wrongful dismissal law reflects its post-war roots. In this paper I examine wrongful dismissal claims heard to judgment between 1981 and 1997. The time frame captures the onset and establishment of the new economy as a permanent fixture in North American society. It also captures the birth and expansion of organizational downsizing practices that have restructured the traditional employment contract. I find that judges are responsive to these conditions, but their responses defy classic conceptions of the law and economy relationship. The implications for socio-legal theory will be the focus of this presentation. [ABSTRACT FROM AUTHOR]