This article examines how the 2010-2011 Reference re s 293, which considered the constitutionality of the polygamy prohibition, contributed to nation building discourses in Canada. A critical discourse analysis demonstrates that traditional views of monogamous marriage remain an important tenet of nation building in Canada. Discourses in the reference portrayed monogamous marriage as a central national institution and as a means of safeguarding women’s equality rights. These discourses, in turn, had racialized consequences for defining Canadian national identity.

Aboriginal perspectives are often not viewed as persuasive or reasonable in contemporary political and legal discourses, and Aboriginal people are compelled to articulate their claims in the normative vocabulary of the majority. Many see this as an injustice. Part I of this essay argues that some incarnations of the idea of public justifiability, a cornerstone of political theory, provide a normative justification for that injustice. Part II argues that the idea is at work in the Canadian courts, even as judges attempt to create space for Aboriginal views. The ambivalent stance of the courts is explored through a case study.

Over the past fifteen years, substantive equality and the idea of positive measures to tackle the structural roots of gender inequality have increasingly gained currency in Europe. Focusing on the case of Greece, this article explores the factors that promote constitutional and statutory reforms to promote substantive equality, and examines the effect of such reforms on gender equality rights and policy. It argues that domestic legal and social mobilization by feminists, who participated in transnational networks, were instrumental in the diffusion of the relevant EU and international norms, leading to a shift in the courts’ jurisprudence and to a constitutional amendment recognizing substantive equality. At the same time, the paper also underscores the ambivalent and limited effects of constitutionalizing substantive equality and positive measures in the absence of ongoing actions aimed at raising awareness and pushing for effective implementation.

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.

In 2005, Canada implemented its first-ever domestic human trafficking legislation under sections 279.01 through 279.04 of the Criminal Code of Canada. The first conviction under this legislation came about three years after its implementation, with a total of only five convictions having been obtained as of January of 2011. This article examines the legislation and the legislative definition of human trafficking in Canada, arguing that the vagueness of this legislation, the breadth of the legislative definition, and its similarity to other provisions within the Criminal Code make it difficult to distinguish human trafficking from other criminal offences, particularly procurement, or in lay language—pimping, which is governed under section 212 of the Code. Analyzing cases identified as human trafficking by Canadian police and legal authorities, this article demonstrates the problematic effects of Canada’s human trafficking legislation. The article points out the challenges arising from identifying non-trafficking cases as human trafficking, including undermining the severity of human trafficking and impeding efforts to combat it.

This article explores the introduction of electoral gender quotas and the unprecedented social mobilization in pursuit of gender equality in Poland. The quota law was adopted as a citizens’ initiative organized by the Congress of Women, a new women’s movement. The article analyzes the factors that account for the success of this initiative, which permanently changed the public debate on gender rights in Poland. In contrast to other countries with legislative gender quotas, the Polish law was the result of bottom-up processes, and it has a strong democratic legitimacy. The law has not significantly influenced the representation of women in the Parliament, yet it significantly mainstreamed the gender perspective in the public debate. Nonetheless, the way in which the quota law has been applied by political parties shows that Polish women in politics are a “minority” devoid of power, and that the prospects for a parity democracy are still remote.

As legal authorities consider the constitutionality of the laws surrounding prostitution in Canada, we have the opportunity to rethink some of the fundamental assumptions that have been made about sex work and the socio-legal responses to it. In this article we draw on the concept of structural stigma to analyze the stigmatic assumptions inherent in the Canadian laws and briefly describe their effect—the civic exclusion of sex workers. We then consider the ways in which these same assumptions of risk and immorality are reproduced in end-demand (partial criminalization), legalized (regulatory) models, and decriminalization. While the decriminalization of sex work is the response that relies on the least stigmatic assumptions, even the celebrated New Zealand model is not absent of moralization and “othering” discourse. Further reflection is required to conceptualize a policy approach that transcends stigmatic assumptions so as to respect the human and civil rights of sex workers.

In a context where cultural difference is for many a source of apprehension, often leading to discrimination against minority groups, culture and cultural rights are particularly important for Indigenous peoples. However, compared with the promotion and protection of other human rights, the marginalization of cultural rights is readily apparent. This article explores one of the sources of this marginalization by asking the following question: to what extent does the concept of culture within the field of international law influence the promotion and protection of cultural rights of minority groups? The author claims that ambiguity around the notion of culture and the absence of a binding definition in the international human rights field yield a reductionist conception of culture. By failing to do justice to minority cultural rights, this conception impacts the realization of those rights and exacerbates certain exclusions. A re-conceptualization of the notion of culture, one that accounts for anthropological ideas and concepts, is therefore needed.

This article analyzes women’s contemporary use of rights to mobilize and pursue claims for gender equality and gender justice in the United Kingdom. Empirically, the paper explores the growth of rights discourse and activity against the backdrop of a stronger constitutionalization of women’s rights at national, European, and international levels. It does this through an exploration of individual and collective lobbying and litigation strategies in relation to violence against women. The paper first examines this in the context of the right to bodily integrity through examples of the ways in which sexual violence and domestic abuse are addressed within the criminal justice system. The paper then addresses the right to be free from violence for women seeking refuge and asylum. The research reveals the need for varied strategies that target all aspects of the legal and political systems in order to ameliorate the protection and implementation of women’s rights.

Drawing on a series of criminal cases that took place in Hamilton in late 1852, this paper explores the operation of race in law during the period against the backdrop of Hamilton’s geography. The paper sheds light on the living conditions of a segment of the population that has left scarcely a trace in the historical records. As well, a close examination of Hamilton’s census records and physical space reveals that those found guilty in these trials were linked to a particular racially and ethnically charged, vice-prone space rather than the more respectable central part of the city. The author argues that the construction of Prince’s Island, which lay in the marshes just west of Hamilton, as a “den of vice” probably conditioned the findings of guilt and innocence in one of the trials while promoting the impression that justice was “colour-blind.”

Drawing on unpublished material on the history of the Culbertson Tract, records obtained through access to information requests, and firsthand knowledge from the community, we trace Mohawk legal and extralegal strategies aimed at reclaiming the Tract to show how Canada legitimizes and manages the continued dispossession of land from the Mohawks of Tyendinaga. Through the criminalization of community members opposing settlement terms under the land claims policy, we conclude that the policy of extinguishment contained in the land claims policy is furthered by policing resistance with the use of security forces on the ground.

Legal mobilization in the courts has emerged as an increasingly important social movement strategy, which complements other political strategies. This paper explores legal and institutional factors that can account for the varying levels of legal mobilization in countries with a civil law system. It examines the different legal opportunity structures (LOS) (such as judicial access and material and procedural law) and the extent to which strategic litigation has been employed by trade unions and other social actors to promote equal pay in four European countries: Switzerland, Germany, France, and Poland. While every component of LOS influences legal mobilization, legal factors and legal context alone are not sufficient to explain the observed variations. Rather, they constitute an important general framework in which other social and political factors, such as norms about gender roles, equality, and litigation, are also significant. Two issues seem to be especially relevant and have emerged as a rewarding field of analysis—the role of media coverage and organizational action frames.

From the time when suicide was considered equivalent to premeditated murder by the Canadian justice system to the decriminalization of attempted suicide in 1972, there was a dramatic reversal in how suicidal behaviors were viewed by society. Through an analysis of cases involving suicide attempts in Quebec between 1892 and 1972, we will examine the shift in the legal interpretation of attempted suicide. The law and medical science occasionally compete with one another to impose their own explanations of attempted suicide. These views are not mutually exclusive, though they are, at times, mutually reinforcing. Furthermore, the social reaction toward suicidal behaviors began to migrate from the criminal to the medical within the context of the courts, resulting in de facto decriminalization before such measures were inscribed into law.

Immigrant minorities adapt to many of the practices and values of their host society. This adaptation is a two-way street. The state and the courts can be called upon to take into account the impact that some of these practices with a religious or cultural basis might have. Thus, as we learned from the Bruker v. Marcovitz decision, an obligation of a religious nature can be characterized as civil in nature when it is part of a contract signed in Canada. The same is true when a contract is entered into while the parties resided abroad. Although such an obligation can be considered justiciable, it is not always easy for Canadian courts to respect the specific nature of the standard in question. Indeed, judges must understand the scope of the standards involved, the function of certain institutions, or the importance of practices with which they are not necessarily familiar. When it comes to the mahr, or dowry, an examination of jurisprudence shows that the specific nature of this practice is not always understood, and in cases where it is recognized, the execution of the obligation it entails cannot always be ensured.

This article examines how EU rights and laws serve as legal opportunity structures for women’s rights activists in Europe. Further, it examines what effects this transnational activism has on the permanence and inclusion of public interests and gender equality in EU legal and political processes. The analysis examines the legal domain of EU women’s rights over a thirty-year period. Methodologically, the study relies on case law analysis, primary document collections, and interviews with non-governmental organizations and governmental elites at both the EU and the national level. I ask how legal mobilization can serve as a catalyst for institutional change (by influencing litigation and legislative action), and how this effects subsequent EU-level women’s rights mobilization and public inclusion.

In the new, post-Soviet Russia, some people have been excluded from the possibility of possessing human rights based on different identity claims. Lesbians and gay men are among those who are excluded. Though in some states the mechanism of this is manifestly inscribed in the law, in Russia the mechanism is hidden in the field of silence: the field of discourse on homosexuality is full of lacunas. While the most productive speakers are certainly LGBT activists, the most passive ones are the state officials. These forces come into discursive play where rights are at stake. The purpose of this paper, based on original research on the emerging activism of gays and lesbians in Russia, is to uncover the regulative features of silence in the Russian discourse on homosexuality.

Current Canadian law, by silence rather than explicit choice, does not prevent anonymous sperm donation. Anonymous sperm donation, however, may soon disappear. In the recent Pratten decision, the Supreme Court of British Columbia determined that anonymity violates the constitutional rights of children born of Assisted Reproductive Technologies (ARTs). While finding that children should have access to genetic knowledge, the court failed to consider the impact of the elimination of anonymity on other parties to ARTs, both sperm donors and ART families. The case was appealed by the Attorney General of British Columbia and heard by the British Columbia Court of Appeal in February 2012 and was overturned. While agreeing with the decision of the Court of Appeal, this article argues that the court failed to provide a fulsome analysis of issues related to privacy, genetic knowledge, alternative family formation, and the false assertion that sperm donation makes a man a father.