Legal method, or the way in which legal claims are processed, is an integral component of the law's authority to include, exclude and deny claims and experiences. This paper explores the issue of sexual orientation and the legal construction of family as it emerges in the decision of the Supreme Court of Canada in Egan v. Canada. The analysis includes a detailed consideration of the ways in which the Supreme Court of Canada incorporates assumptions about the nature of family life as a relevant factor in its assessment of the meaning of the word “spouse” under the Old Age Security Act. The process by which notions of the normal family become legitimized through legal discourse is deconstructed using the work of Mary Jane Mossman and Michel Foucault. Mossman develops an analytic framework which illuminates the ways in which legal method works to preserve the power of law and the illusion that law produces “truth.” Michel Foucault considers both the ways in which knowledge is produced as truth, and its integral links to power.

The decision of the Government of Canada in the fall of 2006 to terminate funding of the Law Commission of Canada was of a piece with the earlier decision of the government of Canada in 1993 to close the former Law Reform Commission of Canada. Unsurprisingly, the creation of the Law Commission of Canada was justified by the same general arguments as those that were invoked when the Law Reform Commission was established. The closure in 1993 occurred after the LRCC had more or less abandoned its original mandate and had taken on a role more in keeping with that typically performed by provincial law reform agencies. That of 2006, by contrast, was undertaken precisely because the LCC did not abandon its statutory mandate. This note explores the conceptions of law, of reform, and of commissions (institutional structure) through which public engagement with, and public participation in reimagining law have been pursued at the federal level. Rather than a lamentation for either the LRCC or the LCC it offers an optimistic assessment of the policy choices that a wise Parliament might well take up in its next iteration of the law reform idea.

Proposals for the demise of the notion of “legal pluralism” in sociolegal and legal anthropological studies have been put to the fore recently by various authors. In their view, the use of the notion carries connotations that basically misrepresent the constitutive dynamics of legal experience, up to the point of impeding the advancement of scientific understanding of law-in-society at present.

This article is part of an effort to place current research on the Canadian judicial process into a broader theoretical context. This effort developed first from a sense that the legal and behavioural frameworks that have dominated the explanation of judicial decision making in the United States Supreme Court obscure more than they illuminate about judicial decision making in Canada; and second from the realization that the most illuminating American studies — those that trace the process by which major cases are brought before the courts and decided — are seen as interesting but atheoretical, as journalism not science. Perhaps our theory is out of joint. And perhaps an effort to understand how American theories and research on judicial decision making can inform Canadian research may be instructive both to American judicial studies and to the work of those outside the United States who are continually tugged toward American approaches that promise liberation from traditional legal analysis.

Since 1930, the mascot of Robertson'sR Marmalade, England's GolliwogR (who looks like Buckwheat, but a bit more nattily attired) has appeared on over 20 million pieces of merchandise—from teapots to toothbrushes to T-shirts … When Golly was criticized in 1984 by some of England's “oversensitive” black population, a Robertson's spokesman righteously declared, “the Golly forms part of our national tradition and attacking it is an attack on a part of British culture.”

This anecdote attracts both our cultural and legal attention. Capturing the central role of trademarks in national culture, it also points to a politics of ownership and protest. Accounting for its significance theoretically, however, is no easy task. Somehow, it resists easy accommodation in any of the three dominant approaches towards the commodified imagery of late capitalism.

Feminism has a particular problem in dealing with questions of sexuality. This is directly tied to the fact that it is our sexuality which has so often been used to deny us rights. Our ambivalence has led some of us to make strange choices. For instance, some of us have joined with conservatives, our natural enemies, campaigning against pornography. This paper looks at another area in which conflicts within the feminist philosophy have worked to confuse our responses and allowed them to be used to undermine the very people we proclaim ourselves the protectors of: women. In two major cases since 1990, the Supreme Court of Canada has quoted feminist words to undermine the position of prostitutes in our society. In addition, LEAF failed to apply for intervenor status on behalf of prostitutes in either case. What does it mean when mainstream feminism finds itself unable to listen to the demands of prostitutes' rights groups and to help them get rid of the laws that make their work more difficult and dangerous? What does it say about feminism as a true “women's movement” that we find ourselves unable to honor other women's assessment of their position in society and their desires for change.

This paper examines changes in Canadian sentencing legislation between 1984 and 1997 in relation to M. Foucault's genealogy of discursive practices. Foucault suggested three regulatory practices which were associated with contemporary projects of governmentality: punishment, discipline and risk management. The legislative changes regarding sentencing in court and conditional release decisions are reviewed to assess the extent to which the various regulatory practices have been adopted. It is suggested that Canadian sentencing discourse has become increasingly bifurcated around a combination of risk management and disciplinary strategies which are presented in a context of denunciation. The character of this arrangement and several of its anomalous features are examined.

The sociopolitical landscape of modern-day Cameroon is the result of maneuvers instituted by the Berlin Conference (1884–1885). The purpose of this study is to help put in perspective the roots of “identity blurring” that is often cited, rightly or wrongly, as one of the reasons why international law cannot apply to minorities and indigenous peoples in Cameroon. On the one hand, we discover that the Berlin Act produced a profound change in the civility of the peoples of Cameroon by legitimizing certain nontraditional practices such as expropriation and deportation. By de-territorializing certain groups, these practices contributed to their uprooting and to their alienation from their native identity. On the other hand, despite timid attempts to raise awareness, national public authorities in independent Cameroon have been unable (or unwilling) to repair past injustices. The implementation of modern law to the detriment of the traditional system appears to have contributed to the prolongation of the deconstruction of identity that began during the colonial era. Overall, the issue of land ownership in Cameroon has intensified rather than mitigated the sense of urgency regarding the need to address the affairs of the country’s minorities and indigenous peoples.

This paper reviews the history of Bill 53, the Freedom of Informed Choice (Abortions) Act. A private member’s bill introduced in the Saskatchewan Legislative Assembly in 1985, Bill 53 would have imposed additional consent requirements on women seeking abortions. After concerns about its constitutionality were raised, the Bill was referred to the Saskatchewan Court of Appeal, which found it fell outside provincial jurisdiction. This paper explores the connection between Bill 53 and its more well-known cousins, Morgentaler and Borowski, and examines judicial and political decision-making in the early Charter era.

In restorative justice theory, the concept of “community” looms large, since it is the locus of the very restoration to which this form of justice aspires. The questions that then raise themselves are: what is this “community” and how is this community rebuilt through the more relational and dialogical process of restorative justice? In investigating one restorative justice panel program in the United States, it becomes clear that “community” means different things to different individuals. Questioning the possibility of a locally-sanctioned version of justice, this study suggests that the starting point of including “community” in restorative justice should be re-thought.

La politique actuelle de réconciliation qui guide les rapports que l’État canadien entretient avec les peuples autochtones affiche une certaine discontinuité en matière de reconnaissance de leurs droits religieux. D’une part, les gouvernements accordent aux Autochtones certains privilèges à des fins de valorisation de leurs particularismes religieux dans l’espace public, d’une manière qui ne s’étend pas nécessairement à d’autres segments de la société. Parallèlement, par l’entremise de lois et d’ententes politiques, des nations autochtones se sont vu reconnaître des droits et privilèges en lien avec leur sphère religieuse, lesquels demeurent toutefois largement assujettis au cadre normatif établi par la majorité. Enfin, les tribunaux peinent jusqu’à présent à considérer les particularismes religieux des nations autochtones en tant que motif décisionnel. Cette reconnaissance à géométrie variable laisse transparaître un relent de colonialisme suivant lequel la dimension symbolique est valorisée, au détriment des avenues susceptibles de mener à une réelle autonomie des nations autochtones en matière d’expression religieuse.