UBC Feminist Legal Studies - UBC Faculty of Law

Feminist initiatives in the curriculum are complemented by a commitment to research and scholarship in feminist legal studies. Feminist approaches and analyses are developed in relation to Criminal Law and Evidence (Profs. Benedet, Boyle, Cunliffe and Grant), Constitutional Law (Prof. M. Young), Corporate Law (Prof. Sarra), Disability Law (Profs. Grant and Mosoff), Family Law (Profs. Boyd and Kelly), Immigration & Refugee Law (Prof. Dauvergne), Sexuality and Law (Profs. Boyd, Kelly and C. Young), International Law (Prof. Mickelson), Social Welfare Law (Prof. M. Young), and Taxation Law (Prof. C. Young). Work is being done as well in feminist legal theory and legal education, and on the intersections between race, gender, sexuality, class, disability and culture. See below for information on the following projects:

Reconceiving Human Rights Practice for a New Social Rights Paradigm (2009 -)
Investigator - Margot Young

Social rights, such as the right to adequate housing, income, health, education, and work, have achieved unprecedented prominence within the global human rights movement. After many years of negotiations, the UNHRC's recent adoption of a social rights complaints procedure was characterised by former UN High Commissioner for Human Rights Louise Arbour as "Human Rights Made Whole." New international treaties, such as the UN Convention on the rights of Persons with Disabilities (CRPD) recently signed by Canada, and local domestic instruments, such as the Montreal Charter, no include complaints procedures for social rights. As well, human rights institutions in Canada are devoting increasing attention to social rights. yet, at the same time, international human rights bodies and experts have expressed alarm at escalating systemic violations of social rights in Canada and have underscored the particular negative impact these violations are having on women, Aboriginal people and other disadvantaged groups in Canada. Increasingly, Canada has become a nation marked by dramatic income and wealth inequality, where the promise of equal citizenship for all is far from being met. A critical question in Canada and internationally is whether new institutional mechanisms to protect social rights can lead to the transformative change that is required to provide real solutions to growing poverty and inequality in Canada. The effectiveness of any human rights framework relies on human right actors, and such actors in Canada face both conceptual and practical challenges. New governance arrangements have altered relations between civil society and the state on which human rights practice was historically based. In the 'contracted out' state many organizations acting for disadvantaged groups in areas such as housing and social programs have been enlisted as partners in governmental service delivery. The abandonment of a statutory entitlement approach to social programs in favour of intergovernmental agreements and public-private program delivery has removed a traditional basis for enforcing social rights norms. Loss of state funding for rights-based advocacy and the growing international economic crisis have further eroded resources for independent human rights practice. This research Project will be organized under two themes. Under the "Grounding International Social Rights Practice" research theme, researchers will collaborate with affected communities in Canada engaging with new international complaints mechanisms and intervention opportunities to identify key strategic and conceptual issue that must be addressed and to promote a relevant framework for community based social rights practice at the international level. under the "New Spaces for Social Rights Practice" research theme, researchers will assess and respond to changes in governance methodology and models of citizenship that present significant challenges for human rights actors, and will support new opportunities for social rights advocacy within Canada, including before tribunals dealing with access to utilities, healthcare, housing and income assistance; within human rights institutions; under municipal rights charters; and in relation to non-governmental service providers.The Project will be of immense value to disadvantaged communities in Canada seeking to effect concrete positive change through affirmation of their social rights, to civil society actors engaged with issues of poverty and human rights, to judicial, administrative and governmental decision-makers, and to a wide variety of academic researchers engaged with issues of citizenship, governance, human rights, constitutional law, public administration and international law.

Autonomous Motherhood (2008-2012)

This project's objective is to conduct a qualitative socio-legal study of autonomous mothering (outside of marriage or cohabitation) and its different forms, past and present, in Canada, focusing on the post-WWII period. Women have long been mothers by "chance" and sole parents of "illegitimate" children. More recently, an apparently increasing number of women are choosing to become mothers without intending the biological father to participate in parenting. We will study these past and present phenomena empirically in their social, economic and legal contexts to understand the relative influence of social movements, such as feminism, fathers' rights, gay and lesbian rights, and children's rights, on their development. We will also identify continuities and discontinuities over time, using interviews, archival research, legislative histories, and case law analysis.
A key question is whether autonomous motherhood is a more viable proposition in the 21st century than in the Post WWII period. We will examine factors such as (a) changing socio-legal definitions of "family" and "parent"; (b) abolition or modification of illegitimacy as a legal status; (c) increased focus on fatherhood in law and social policies; (d) increasing diversity and availability of alternative and assisted conception methods; (e) state regulation of families and privatization of familial responsibilities (e.g. child support law); and (f) the best interests of the child principle. We will investigate the ways in which the vilification of single motherhood has diminished or changed, how autonomous mothers organize their parenting socially and economically, the impact of race, class and sexuality, and the extent to which law facilitates or inhibits their autonomy.
Susan B. Boyd (UBC) (Principal Investigator)
Fiona Kelly (UBC) (Co-Investigator)
Dorothy E. Chunn (SFU) (Co-Investigator)
Wanda Wiegers (University of Saskatchewan) (Co-Investigator)

When Yes Means No: Consent and Capacity in Sexual Assault Law (2008 - 2012)
Janine Benedet - sole investigator

This project considers when the criminal law is willing to vitiate an apparent consent to sexual contact because that consent was not validly obtained and whether the current law is justifiable. Major reforms to the criminal law of sexual assault in 1982 and 1992 shifted the focus from the complainant's physical resistance to an examination of her subjective state of mind at the time of the sexual contact. Thus the prosecution no longer needs to prove that the complainant resisted the accused's sexual advances. Instead, the state must demonstrate beyond a reasonable doubt that the complainant, in her own mind, did not want the sexual activity to take place. This shift in legal doctrine is sometimes described by the popular media and indeed some legal commentators, as the "no means no" law. Strictly speaking, this characterization is not correct. The Supreme Court of Canada has gone further and has recognized that passivity or a lack of objection must not be equated with consent. (R. v. Ewanchuk, 1999) It is therefore more accurate to say that we currently have a sexual assault law in which "silence means no" as well.However, the criminal law has also recognized that there are some circumstances in which an apparent agreement or acquiescence in sexual activity is not valid. Perhaps the most uncontroversial of these situations is the case in which the complainant is under the age of consent. Other situations, in addition to age, in which Canadian criminal law currently acknowledges that "yes means no" include some cases of fraudulent deception; incapacity to consent through intoxication; incapacity to consent through disability; and lack of voluntariness through threats or extortion.Yet there are other situations in which the validity of an apparent "yes" may be questioned, but the criminal law of Canada does not consider the complainant's consent invalid. Two obvious examples are situations of sexual harassment in employment, where submission to sexual activity is made a term of continued employment, and the consent given by prostituted persons to the buyers and pimps that buy and sell sexual access to their bodies.This proposed research will provide the first systematic examination of the situations in which Canadian criminal law recognizes that "yes can mean no." This project will evaluate the validity of the current legal framework when measured against the objectives of sex equality and sexual self-determination for women, who make up the large majority of sexual assault victims.

Reconsidering Child Homicide: Investigation, Evidence and Fact Determination in Canadian Cases from 1990 - 2010 (2010 - 2013)

This project is funded by SSHRC from 2010 - 2013. Professor Christine Boyle and Assistant Professor Emma Cunliffe will conduct the research in collaboration with a number of graduate research assistants. The results of our research will be published in a book, and will also generate a number of peer-reviewed articles.The Report of the Inquiry into Pediatric Forensic Pathology in Ontario (Goudge 2008) suggests that 23 Canadian parents and caregivers were charged between 1991 and 2005 with killing children who may well have died naturally or who were killed by others. A disproportionate number of those who were wrongly charged were women (both mothers and caregivers). Many were convicted and spent time in jail before being exonerated. In keeping with its terms of reference, the Goudge Inquiry focused on the institutional processes of death investigation, and on the particular failings of an individual expert, Dr Charles Smith. Institutional processes and localised incompetence are, however, only part of the process that led to flawed medical and legal conclusions being reached in the cases mentioned in the Goudge Inquiry.A coalescence of legal, scientific, and social knowledges informs the decision to lay charges in relation to a child's death. Focusing on institutional scientific processes and rogue experts without considering other factors that contribute to charging decisions inhibits the justice system's capacity to prevent unwarranted prosecutions in future. Thorough analyses of the evidentiary dimension of death investigation and child homicide prosecutions remain lacking.To address this shortcoming, this project provides the first comprehensive analysis of the evidentiary aspects of child homicide prosecutions from the moment of death until case disposition. This research project has three objectives: 1) to ascertain and evaluate knowledge about how children die in order to focus on areas that present particular challenges for criminal processes; 2) to examine the relationships between: research into child death; death investigation; evidence law; fact determination and burdens of proof in Canadian cases; and 3) to identify and communicate strategies for improving fact determination in child homicide cases.The research will advance legal scholarship on evidence, particularly expert evidence, This research project employs a variety of theoretical and methodological approaches. Critical doctrinal analysis grounded in feminist legal theory and critical race theory will be supplemented by contemporary socio-legal theories of fact determination and criminal processes. A critical analysis of published statistics will provide a demographic snapshot of child death and child homicide prosecutions in Canada.A qualitative history of knowledge will be prepared, covering published scientific research into the aspects of child death that are most likely to involve controversial scientific evidence. The transcripts of and documents from the Goudge Inquiry into Pediatric Forensic Pathology Services in Ontario (2008), together with extracts from the transcripts of 20 contested child homicide proceedings, will form the basis for a close analysis of evidence generation in deaths that lead to homicide prosecutions. Our analysis will, in part, explore the roles of gender, race and socio-economic status in identifying and prosecuting allegedly culpable homicides.Reform proposals will be: generated from the textual research and from workshops with key legal and scientific actors; and refined for broad dissemination.

Infanticide in Contemporary Canadian Law and Society

Professor Isabel Grant and Assistant Professor Emma Cunliffe are collaborating on a research project that seeks to understand the history and contemporary role of infanticide (s. 233 of the Criminal Code) and related parts of Canadian homicide law. Professor Debra Parkes of the University of Manitoba is also a co-researcher on this project. In recent years, there has been a trend towards charging mentally disturbed women with murder rather than infanticide when they kill newly born children (see for example R. v. Effert (2009) 244 C.C.C. (3d) 404; R. v. L.B. (2008), 61 C.R. (6th) 179). This trend raises difficult legal and social questions about the nature of criminal responsibility; the extent to which social change has surpassed the legislative recognition that some women face unique, and legally relevant, challenges in mothering; and the proper relationship between statutory law, judicial decision-making and prosecution charging practices. A feminist perspective is central to obtaining a more complete understanding of these questions. We are working to document social and legal change in this field, and to suggest how courts, parliament and prosecutors might respond to the contemporary challenges of applying a law that was crafted in somewhat different times. Sample publicationsEmma Cunliffe, "Infanticide: Legislative History and Current Challenges" (2009) 55 Criminal Law Quarterly 94 - 119.Isabel Grant, "Desperate Measures: Rethinking the Crime of Infanticide" (2010) Can. Crim. L.R. , forthcoming.

Reforming Child Custody Law in Canada (1998-2003)

This SSHRC project brought together two feminist, socio-legal scholars, one trained primarily in law (Professor Susan Boyd, UBC Law) and the other in sociology and media studies (Professor Dorothy Chunn, SFU Sociology). The objective was to document and analyze the factors that have influenced recent law reform processes related to child custody and access in Canada. In particular, the goal was to identify which factors, or combinations of factors, have carried the greater weight in the process of reforming laws related to children whose parents are separating. In addition to tracking the influences on law reform and the results, the researchers wanted to assess the extent to which any imbalance between the impact of women's groups and men's groups was manifested in the law reform process and to determine and analyze the reactions of women's and men's groups to the reforms and the reform process. As the project developed, the researchers also began to track the discursive differences between these groups. As well, one researcher (Boyd) conducted a comparative study on Canadian and Australian law reform processes (with H. Rhoades of the University of Melbourne).Publications included:
Susan B. Boyd, "Backlash against Feminism: Custody and Access Reform Debates of the Late 20th Century" (2004) 16 Canadian Journal of Women and the Law 255-290.Helen Rhoades and Susan B. Boyd, "Reforming Custody Laws: A Comparative Study" (2004) 18 International Journal of Law, Policy and the Family 119-146. Susan B. Boyd, "Demonizing Mothers: Fathers' Rights Discourses in Child Custody Law Reform Processes" (2004) 6:1 Journal of the Association for Research on Mothering 52-74.

Poverty: Rights, Social Citizenship and Legal Activism

The book Poverty: Rights, Social Citizenship and Legal Activism, edited by Professors Margot Young and Susan Boyd (UBC) and Shelagh Day and Gwen Brodsky of the Poverty and Human Rights Centre, was published by UBC Press in 2007. Research conducted by students and professors during the Poverty and Human Rights Project was synthesized into this comprehensive volume that explores the state of poverty as a human right under Canadian law, following the 2002 Supreme Court of Canada decision in Gosselin v. AG (Quebec).

The Poverty and Human Rights Centre

About the Poverty and Human Rights Centre

The Poverty and Human Rights Centre is committed to eradicating poverty and promoting social and economic equality through human rights.

Social and Economic Rights
Canada has ratified international human rights treaties that require governments at all levels to ensure that every Canadian resident enjoys social and economic rights. The International Covenant on Economic, Social, and Cultural Rights commits governments in Canada to taking steps to ensure that everyone has an adequate standard of living, including adequate food, clothing and shelter. This Covenant also guarantees rights to: just and favourable conditions of work; the highest attainable standard of physical and mental health; free basic public education; participation in trade unions; social security, such as pensions and employment insurance; and support for families.

The preamble to the Universal Declaration on Human Rights, which was adopted by the United Nations in 1948, states that the highest aspiration of the common people was the "advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want." In this foundational human rights document civil and political rights (to vote, to be free from torture and slavery, to speak freely, to have religious freedom) and social and economic rights (to work, health, education, food and shelter, and social security) were set out together, as interlocking and interdependent rights.

Social and economic rights, although neglected by comparison with other human rights until now, are gaining in importance in Canada and around the world.

Living Up to the Commitments
One of the ways that Canada fulfills its social and economic rights commitments is by creating social programmes, including such programmes as social assistance, legal aid, social housing, medicare, and public education. Thus, there is an important connection between the vigour of social programmes in Canada and the fulfillment of our human rights commitments.

In addition, the Charter and human rights laws are primary vehicles for giving effect to Canada's social and economic rights commitments.

The Right to Equality
There is a close connection between social and economic rights and the right to equality. The group: "people living in poverty" is predominantly composed of women, Aboriginal people, people of colour, older people, and people with disabilities. Inevitably, the children of the poorest people also suffer. The consistently high rates of poverty of these groups reveal the effects of the various forms of discrimination they face. Programmes and services that enhance social and economic security are essential to their achieving equality.

Mandate of the Poverty and Human Rights Centre
The mandate of the PHRC is to promote compliance with the human rights commitments that Canada has made; to advance interpretations of rights that resist the marginalization of social and economic rights; to develop proposals for law reform and institutional renewal that will assist in the fulfillment of rights obligations; and to educate the public about the human rights implications of government choices that erode social programmes and deepen poverty and social and economic inequality.

The PHRC does its work through research, analysis, writing, and public education, and collaborates with community groups, scholars, lawyers and students.

The Centre produces articles and oped pieces for publication in newspapers, books, and journals, presents papers and speeches in academic and public settings, and develops research resources related to social and economic rights and the right to equality. We collaborate with community groups to prepare briefs and make submissions to international human rights bodies. We also provide analysis and advice to support advocacy before courts and tribunals.

History
The PHRC began its work as the Poverty and Human Rights Project in 2001 supported by a three-year Major Initiatives Grant from the Law Foundation of British Columbia. Many of the articles and submissions posted on this site, as well as the website itself, were produced with the financial assistance of the Law Foundation.

The Poverty and Human Rights Project was an initiative of the Canadian Human Rights Reporter, Inc. in collaboration with the Centre for Feminist Legal Studies at the University of British Columbia. Directors of the Project were Gwen Brodsky and Shelagh Day. Angela Cameron was the Project's Senior Researcher and Co-ordinator from 2001 to 2004. She is the principal architect of this website and the Centre's Library.

From Project to Centre
In 2004, it became clear that there was a need for ongoing work to advance knowledge of poverty as a human rights issue. The Poverty and Human Rights Project changed its name to the Poverty and Human Rights Centre, and our work continues, with Gwen Brodsky and Shelagh Day as its Directors. In 2004 this work is funded by the Law Foundation of British Columbia and by the Social Sciences and Humanities Research Council - Community University Research Alliance Programme.

The Library
The Library is a searchable database of materials related to social and economic rights. It includes texts of relevant international human rights treaties, Canadian and other laws, court decisions, legal briefs (includes a factum library), and articles. To use the library, go to buttons at the top of the page (topics, documents, resources).

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Feminism, Law & Social Change in Canada, 1967- 2000: (Re)Action and Resistance

This project was funded by the SSHRCC from 1998-2003. UBC law Profs. Susan B. Boyd and Claire Young are co-investigators on this project, while Prof. Dorothy Chunn of Simon Fraser University is the principal investigator. Prof. Hester Lessard of the University of Victoria and Prof. Robert Menzies of SFU are also co-investigators.

This research project focuses on (re)action and resistance to feminist attempts to shape law and policy in English Canada since the 1960s. Feminist engagement with the law was an integral part of the contemporary women's movements over the last three decades of the 20th century. While feminists vary in their assessments of reform initiatives, they currently share a fear that the reforms which have been achieved in law and policy are generating increasingly vocal (re)action and resistance and that women are in danger of "running hard to stand still" or of losing the ground that has been gained through legal and political struggles.

Feminists who want to maintain and build on past achievements in the face of opposition confront challenges and critiques not only from outside the women's movement but also from within it. Contrary to what the critics say, however, feminists/women have not achieved any fundamental social transformation in liberal democracies since the 1960's. The contradictory and unanticipated effects of feminist-inspired reforms in the areas of family, criminal, employment and welfare law and policy have been well documented. Yet a dominant theme in contemporary public culture is that women have been given more than their share of the pie and it is time to restore social balance by attending to other "victims" of social change (i.e. white men) who have been denied or ignored because of the disproportionate attention feminism has demanded and received for "women's issues".

The primary objective of this research project was to document and analyze (re)action and resistance to feminist campaigns for legal and policy reform since the 1960's. Clearly, gender equality in Canada has not been realized. We have compared the competing conceptions and perceptions of feminism, law and social change held by feminists/women and their critics over time to try and explain why the currently persuasive, negative assessments of feminist achievements by the latter are so at odds with the realities of most women's (and men's) lives. Specifically, we focused on three areas of law and policy- child custody, child support and equity programmes- where feminist-inspired reforms have generated considerable 'backlash', in both academic and popular culture. Using these substantive topics, we have explored the larger question of how socio-legal changes have been perceived and (re)presented in a number of institutional sites -- the courts, Parliament(s), the mainstream media and the academy.

This project's objective is to contribute to knowledge and provide a basis for developing legislation and policy that will promote the equality of all women during an era marked by the decline of the welfare state and the ascendancy of a neo-liberal state in Canada. Feminist research has focused on women's stories and experiences of socio-legal reform, but in the current situation, feminists must answer the critics' charge that feminism has become elitist and authoritarian. To assess the impact of legal and policy reform in Canada, feminists (and pro-feminists) should focus on the reactions and responses of those who have lost a little and those who have gained the most from particular changes; privileged white men and women respectively. They need an analysis and explanation of why the depiction of feminists as victimizers, zealots, etc., is so widespread in the public culture. In short, to develop new strategies in law and policy, feminists must first address the question of how the privileged are able to render invisible the structured inequality of most Canadian women and deconstruct the views of men and women in various institutional settings who (re) present feminism as the enemy of freedom.

The researchers presented their work in progress at various conferences in Canada and Europe. The book Reaction and Resistance: Feminism Law and Social Change, published by UBC Press in 2007, was one product of this project.

Sample publications include:

Susan B. Boyd & Claire F.L. Young, "Who Influences Family Law Reform? Discourses on Motherhood and Fatherhood in Legislative Reform Debates in Canada", (2002) 26 Studies in Law, Politics, and Society 43.

Susan B. Boyd, "Backlash and the Construction of Legal Knowledge: The Case of Child Custody Law", (2001) 20 Windsor Yearbook of Access to Justice 141.

Susan Boyd and Dorothy Chunn have obtained a new SSHRC grant to continue investigation of the child custody law reform part of the project.

GENDERING ASYLUM: Understanding the Effects of Canada's Immigration and Refugee Protection Act on Women Asylum Seekers

Gendering Asylum is an inter-disciplinary research project at the University of British Columbia. In 2002, Canada brought in new immigration and refugee legislation. The research team investigated how the new laws affect women and men differently when they seek asylum in Canada. Check out the website for information about their work, which began in May 2003 and concluded in April 2005.