02-03 law society programme

Law and Society Seminar Series

Coach House, Green College,

Thursday, November 28, 2002, 5:00-6:30 p.m.

`The Trouble with ‘Normal’:*

Law’s Construction of the Violent Offender"

* apologies to Bruce Cockburn

Dr. Elizabeth Comack, Department of Sociology, University of Manitoba

Abstract: Some years ago, David Sudnow (1965) used the concept of ‘normal crime’ to examine the activities of the court. Sudnow argued that over time, prosecutors and defense lawyers developed proverbial characterizations of offences based on the typical manner in which certain offences are committed, the social characteristics of the persons who regularly commit them, the features of the settings in which they occur and the type of victim often involved. Since that time, critical legal theorists have situated law as both a gendering (Smart, 1992) and racializing (Kline, 1994; Razack, 2000) practice. Law not only brings into being gendered subject positions, it is also one of the discourses in which racism is constructed and reinforced in society. While the notion of law as a gendering and racializing practice adds a significant dimension to the concept of ‘normal crime,’ the process by which this actually ‘works’ remains unclear. Drawing from an analysis of legal documents found in Crown Attorneys’ case files on 45 women and 45 men who appeared before the Manitoba Court of Queen’s Bench on violent crime charges, my purpose will be to explore law’s construction of ‘normal’ violent crime. It will be argued that while men’s aggression is normalized, women who appear before the court of charges of violent crime constitute an anomaly; they breach the gendered norms and expectations associated with ‘normal crime.’ Overlapping and intersecting with this gendering practice are the ways in which racist ideological representations make their way into the legal process. Racialized presuppositions of credible witnesses and culpable defendants infuse the proverbial characterizations of ‘normal’ violent crime, while racialized spaces set the context in which the actions of complainants and defendants are read by the court.

Elizabeth Comack received her Ph.D. from the University of Alberta in 1984 having been educated previously at Queens University and the University of Winnipeg. She has taught at the Department of Sociology at the University of Manitoba since 1990 and at the Department of Sociology at the University of Winnipeg prior to that.
Her publications include numerous journal articles and book chapters. She has also published two editions of The Social Basis of Law: Critical Readings in the Sociology of Law (co-edited with Steve Brickey); Women in Trouble: Connecting Women's Law Violations to Their Histories of Abuse; The Feminist Engagement with the Law: The Legal Recognition of the 'Battered Woman Syndrome'; and Locating Law: Race/Class/Gender Connections (as editor). Information regarding her current research on "Women's Violence" is to be found at www.policyalternatives.ca

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Dinner is served at Green College at 6:30 p.m. To book dinner phone 822-0912 before 10:00 a.m. on the preceding business day. Specify vegetarian or non-vegetarian option when you phone. Dinner can be paid by purchase of tickets in advance from the Green College Office ($10.50 for students, $13.50 for others) or in cash on the evening ($12.00 for students; $15.00 for others).

Law and Society Seminar Series

Small Dining Room, Green College,

January 27, 2003, 1:00-2:30 p.m.

The Challenges of September 11 for Canadian Law, Democracy and Sovereignty

Professor Kent Roach is a professor of law and criminology at the University of Toronto. He holds degrees in law from Yale and Toronto, and a degree in political science and history from Toronto. He has been a member of the Ontario Bar since 1992. Prior to joining the Faculty, he was law clerk to the Supreme Court of Canada for Madam Justice Bertha Wilson. He has served as research director for the Ontario Law Reform Commission's Project on Public Inquiries, and Dean of Law at the University of Saskatchewan. Acting pro bono, he has appeared as counsel before the Supreme Court of Canada over ten times as counsel for various public interest groups.

Professor Roach’s teaching and research interests include the criminal process, the Charter, aboriginal rights, the role of courts, anti-terrorism and the legal profession. His books include Constitutional Remedies in Canada (1994), which won the Walter Owen Prize as the best English language law book published in 1994 and 1995, Due Process and Victims' Rights: The New Law and Politics of Criminal Justice (1999), which was short-listed for the 1999 Donner Prize for best book on public policy and The Supreme Court on Trial: Judicial Activism or Democratic Dialogue which was short-listed for the 2001 Donner Prize for best book on public policy. He is also the author of Criminal Law 2nd ed (2000) and a co-editor of The Security of Freedom: Essays on Canada’s Anti-terrorism Bill (2001) in addition to numerous articles published in Canada and abroad. Since 1998, he has also served as editor in chief of the Criminal Law Quarterly.

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Law and Society Seminar Series

Coach House, Green College,

Wednesday, July 24, 2002, 12:00-1:00 p.m.

"The Legitimacy of International
Law-Making in light of the Security Council's Resolution on Peacekeeper Immunities"

Abstract: Ever since 1945, when five of the world's then victorious superpowers established themselves as permanent "guardians" of international peace and security - under the auspices of the UN Security Council - many questions have arisen as to the legitimacy of this arrangement for international governance. First and foremost, who would "guard" these guardians, in case they did not fulfil their mission? One after another, various international institutions and mechanisms designed to introduce some form of "rule of law" into the equation, have been created and then emasculated to varying degrees by one or more of the five permanent Security Council members.
The new International Criminal Court carries the hopes of the majority of members of the international community, to hold to account ALL those responsible for committing the most heinous atrocities against humankind. After the Security Council adopted its resolution last week, granting
immunity to certain peacekeepers, without a case on which to base this decision, many are questioning whether the "international rule of law" has made any headway at all since 1945.

Joanne Lee, LLM, is an Australian lawyer, currently registered in the PhD program at the Faculty of Law, UBC. Her original PhD thesis proposal was: "The relationship that develops between the International Criminal Court (ICC) and the UN Security Council will determine the legitimacy of the ICC as a mechanism for bringing the "rule of law" to the international arena." Since October 1998, she has also been a part-time Legal Researcher at the International Centre for Criminal Law Reform & Criminal Justice Policy (ICCLR), which is based at the Faculty of Law. In that capacity, she has
been involved in preparing several ICC implementation guides, and chairing workshops and presenting papers on various ICC issues to government, civil society, and media delegates at numerous conferences across the globe since 2000. Last week she attended the historic, open session of the Security Council at United Nations Headquarters in New York, where the resolution on
peacekeeper immunity was discussed.

Session Chair: Dr. Maurice Copithorne (Law, UBC)

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Law and Society Noon Hour Seminar

Small Dining Room, Green College,

Wednesday, September 18, 2002, 12:30-1:30 p.m.

Sensitive new age laws or one law?

Chair: Doug Harris, Law, University of British Columbia

Speaker: Mark Harris, Law, La Trobe University, Victoria, Australia

Abstract: Nearly twenty years ago the Australian Law Reform Commission conducted a comprehensive report into the recognition of Aboriginal Customary law. The three volume report made a series of recommendations concerning the recognition of Aboriginal law by the Australian legal sytem, mostly with respect to criminal and family law. Since that date, however, there has been no formal recognition of the Indigenous customary law (leaving aside the recognition of native title by the Mabo judgment). Currently the Western Australian State and Northern Territory governments are again reviewing possible models for some type of recognition. It is within this context that I consider recent decisions and sentencing remarks by Australian courts which highlight the Australian legal systems uncertainty in dealing with Indigenous law.

Mark Harris is a lecturer in the School of Law, La Trobe University. His research interests include Indigenous people's rights, discrimination law and environmental (natural resources) law. During the period from 1996 to 1998 he worked as a lawyer for Aboriginal claimants in native title claims in the southern part of Australia. He completed his dissertation on the effects of native title in s-eastern Australia in 2001.

LAW AND SOCIETY LIST. (Listowner: pue@law.ubc.ca) A Green College/ West Coast Law and Society information list exists to provide information about events. It is not a discussion list. Normally restricted to maximum of one mailing per week during the academic year.

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Law and Society Seminar Series

Coach House, Green College,

Thursday, September 26, 2002, 5:00-6:30 p.m.

Facts, theories,

flights of ethnographic imagination

in Native title litigation

Chair: Douglas Sanders, Law, UBC

Speaker: A.J. Ray, History, UBC

ABSTRACT: The paper will examine the use of ethnohistorical evidence in Native Title litigation in North America and Australia from 1946 to 1992 emphasizing the California Indian Claims of the 1950s, Delgamuukw and Aboriginal claims in the Northern Territories. I will explore the ways the claims research has influenced the development of the field of ethnohistory/historical ethnography and our conceptualization of Native title.

A. J. Ray: is a Professor of History at the University of British Columbia and a member of the Royal Society of Canada. Professor Ray is an historian and historical geographer whose work reflects his broad interests in aboriginal-white relations, the fur trade, and the adaptive capacities of aboriginal peoples. He has also contributed to the understanding of disease and population decline, diet, and the impact of agriculture and industrialization on the aboriginal-white relationship. His studies explore the aboriginal capacity to adapt to rapidly changing circumstance, the character of aboriginal-white relations generally, and the history of aboriginal peoples in Canada. Professor Ray's current work has made him a principal figure in treaty-making discussions and aboriginal land claims.

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Law and Society Seminar Series

Small Dining Room, Green College,

Wednesday, October 9, 12:30-1:30

Child Custody Law & Women's Work

ABSTRACT: Professor Boyd will speak about her new book on this subject.

An important contribution to academic and professional analysis and debates surrounding the nature and historic evolution of child custody and access law in Canada ... timely and pertinent. Linda Neilson, University of New Brunswick

Child Custody, Law, and Women's Work Reform of child custody law has been a controversial topic in Canada since the mid-1980s. Susan Boyd argues that debates over child custody issues are rooted in gender-based dynamics within the family and society. She examines how custody law has evolved over the past two centuries, with a focus on the relationship between the law and gender relations-in particular, the power relations between women and men in the heterosexual family; the dominant ideologies about motherhood, fatherhood, and family; and the differential value attributed to men's and women's work, in both private and public spheres. Overall, this essential text questions the extent to which reform of child custody law on its own can lead to effective social transformation of parenting.

Susan Boyd is Professor of Law, holds the Chair in Feminist Legal Studies, and is Director of the Centre for Feminist Legal Studies, at the Faculty of Law, University of British Columbia. She researches gender and sexuality issues in the fields of family law. Her book, Child Custody, Law, and Women's Work, was published by Oxford University Press Canada in July 2002. She has also published on feminist legal theory. Other works include Challenging the Public/Private Divide: Feminism, Law, and Public Policy (1997) and Canadian Feminist Literature on Law: An Annotated Bibliography (1999). Professor Boyd is on the editorial board of the Canadian Journal of Women and the Law.

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Law and Society Seminar Series

Coach House, Green College,

Monday, October 21, 2002, 5:00-6:30 p.m.

Power and Wound - Taxing choices

at the intersection of class, gender, parenthood and law

Rebecca Johnson is an Associate Professor in the Faculty of Law, University of Victoria. Her research interests take her into the domains of constitutional law, criminal law, and the intersections of law and popular culture. She has recently published Taxing Choices: The Intersection Of Class, Gender, Parenthood, And The Law as part of the UBC Press Law and Society Series: http://www.ubcpress.ubc.ca/search/title_book.asp?BookID=2129

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Law and Society Seminar Series

Small Dining Room, Green College,

Wednesday, October 23, 2002, 12:30-1:30 p.m.

Spooks under your desktop?

A roundtable discussion on "lawful access review"

Andrew Potter is an Assistant Professor of Philosophy at Trent University. He received his BA from McGill University, and his MA and PhD from the University of Toronto, and taught previously at the University of Toronto. He is interested in the concepts of freedom and individuality, and how they are approached through metaphysics, politics, and the law. He is also interested in topics in political theory, especially liberalism, federalism, and constutitionalism.

Other discussants: Professor Margot Young (Law, UBC and University of Victoria); W. Wesley Pue (Law, UBC)

Issue: On August 25, the Government of Canada announced that it would be reviewing and updating its Lawful Access legislation, which provides for the lawful interception of communications, and the search and seizure of information by law enforcement and national security agencies. According to a government press release, the update "is essential to a broad range of investigative bodies, in their continued efforts to fight crimes such as terrorism, child pornography, drug trafficking, smuggling, Internet and telemarketing fraud, price fixing and money laundering."
Two reasons have been offered for the review. First, the rapidly changing communications enviroment has rendered obsolete legislation that was designed in the age of the rotary phone. Second, Canada needs to bring its legislation in line with the Council of Europe Convention on Cyber-Crime, which we signed last year.
A Department of Justice consultation paper published at http://www.canada.justice.gc.ca/en/cons/la_al/ contains proposals that would compel ISPs to hand over the names and addresses of customers to the police on request, curtailing rights to remain anonymous online. Changes in Canada's Criminal Code widen police search powers, require ISPs to retain customer Web logs for up to six months and to
outlaw possession of computer viruses are also proposed.

Questions:

Is this a necessary update of our legislation, or is Europe and (less overtly) terrorism being used as a pretext for a grab of new police powers?
Is the current legislation really out of date?
Are we really bound by the Council of Europe Convention?
Are the proposed changes consistent with the Charter of Rights, especially our rights against search and seizure, and perhaps against self-incrimination?
Do they strike the right balance between freedom, security, privacy, and the rights of industry?
Does this violate more fundamental rights, such as a right to anonymity online? Should we have such a right?
The Department of Justice will be accepting submissions from the public until Nov. 15, 2002. A panel will discuss the proposed changes, with the aim of allowing us, as citizens, to make informed, meaningful, and timely submissions.

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Law and Society Seminar Series

Small Dining Room, Green College,

Tuesday, November 5, 12:30-1:30 p.m.

Justice behind the Walls:

Human Rights in Canadian Prisons

ABSTRACT: Michael Jackson will speak to his new book by this title. See also justicebehindthewalls.net, a site dedicated to the protection and advancement of human rights in Canadian prisons and to promoting a culture of respect for the Rule of Law behind prison walls. The prison, seen as the most powerful weapon in our armory against those who would hurt us, is the part of the criminal justice system that is the least accessible to our gaze and the least amenable to public accountability. Justice behind the Walls seeks to open up an electronic window on the prison world, to provide both those involved in the criminal justice system and those in whose name it is invoked, with a greater understanding of the realities of the contemporary prison, to ensure that the experience of justice that sustains democracy outside of prison is not abandoned when the keeper and the kept encounter each other inside.

Michael Jackson has been involved in the teaching and advocacy of human rights for over 30 years, specializing in the areas of prisoners' rights and aboriginal rights. As a professor at the University of British Columbia's Faculty of Law, he introduced the first courses on these subjects in a Canadian law school; as a lawyer he has represented prisoners and First Nations in leading cases before the Supreme Court of Canada; as a representative of the Canadian Bar Association he has presented submissions on reforms to the criminal justice system to committees of both the House of Commons and the Senate; as an author Michael Jackson has previously published Prisoners of Isolation: Solitary Confinement in Canada and Locking Up Natives in Canada. In 1993, he was awarded the Bora Laskin National Fellowship in human rights research in order to begin the research for Justice behind the Walls.

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Law and Society Seminar Series

Small Dining Room, Green College,

Wednesday, November 13, 2002, 12:30-1:30 p.m.

A prequel to the Titanic:

The "Defense of Necessity," Scarcity,

and the shipwreck

Dr. Tom Koch is a research associate in bioethics at the Hospital for Sick Children, Toronto; adjunct Professor of Geography at UBC and adjunct Professor of gerontology at Simon Fraser University. He is the author of more than 60 papers and 12 books, including his most recent, Scarce Goods, which considers issues of justice, fairness, and 'lifeboat ethics' as they apply to organ transplantation.

ABSTRACT: This presentation critically reviews the paradigmatic case of "lifeboat ethics" in international law: US v Holmes. The trial of a single seaman from the William Brown on charges of manslaughter remains a landmark case in both the "defense of necessity" (for example, Regina v. Latimer) and more generally in protocols of distribution when scarce resources are insufficient for all. Using new information uncovered by the speaker the case is shown to have been a set-up and the conviction of the defendant, Holmes, an orchestrated political necessity.

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Law and Society Seminar Series

Small Dining Room, Green College,

Tuesday, November 19, 2002, 12:30-1:30 p.m.

Privacy, Security & Electronic Communications: Contemporary Canadian Issues

Dr. Ljiljana Biukovic, (Law, UBC), Chair

Educated at the University of Belgrade, the Central European University, and the University of British Columbia, Dr. Bikovic's research interests include trade law, EC law, and internet law.

Richard Rosenberg (Computer Science, UBC):

"In spite of extravagant claims by its proponents that the Internet is a revolutionary technology with profound implications for all aspects of society, it is becoming increasingly clear that its emergence is a mixed blessing. It has been my concern to identify and explicate a number of issues associated with the astonishing pervasiveness of the Internet. More specifically, such issues as privacy and anonymity, free speech, access, and ethics and professionalism, have been at the forefront of my research efforts. The focus of my research has been two fold, namely, developments of national and international privacy policies, particularly with respect to electronic media, in Canada, the United States, and Europe as well as national and international approaches to the regulation of free speech on the Internet." Relevant publications include:

R. S. Rosenberg, "Free Speech, Pornography, Sexual Harassment, and Electronic Networks". The Information Society, October- December 1993, 9(4) pp. 285-331.
R. S. Rosenberg, "Privacy Protection on the Internet: the Marketplace Versus the State". Wiring the World: The Impact of Information Technology on Society, IEEE Society on Social Implications of Technology, Indiana University South Bend, June 12-13, 1998, pp. 138-147. Also available at: http://www.ntia.doc.gov/ntiahome/privacy/files/5com.txt
R. S. Rosenberg, "Free Speech on the Internet: Controversy and Control". In L. Pourciau (ed.) Ethics and Electronic Information in the Twenty-First Century, West Lafayette, Indiana: Purdue University Press, 1999, pp. 93-126.

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