Feminist Pragmatism in the Work of Justice Bertha Wilson

This paper explores the influence of feminism and pragmatism on the work of Justice Bertha Wilson. Inspired by a commitment to promoting equality and advancing justice, Justice Wilson’s approach to judging resonates with feminist pragmatism. This orientation is illustrated by the approach to legal interpretation that she endorsed — an approach that was premised upon the centrality of social context and experiential knowledge rather than abstract legal formalism. Furthermore, she sought to make decisions that advanced social justice, despite her understanding that there were often no ideal solutions in concrete legal cases. Thus, she made decisions that resolved specific legal issues in the short term, recognizing the practical constraints linked to broader patterns of systemic and intergenerational inequity, and the need to continually rethink the meaning and scope of evolving legal rights

Inclusion, Voice, and Process-Based Constitutionalism

This article explores a growing emphasis on process issues in the elaboration of constitutional rights and freedoms, focusing on the Canadian Charter of Rights and Freedoms. In a diverse range of contexts, judges are framing constitutional rights and freedoms in terms of the processes and practices they require, rather than in terms of specific constitutionally mandated substantive outcomes. Thus, constitutional rights have been interpreted to require a duty to negotiate, a duty to consult, a duty to accommodate, and entitlements to participate in democratic governance. The growing emphasis on processes and practices is positive to the extent that it resonates with new understandings of social regulation in modern society, empowers institutional and social actors as change makers, and reduces reliance on the judiciary as interpreters of the substantive content of rights in diverse social and institutional contexts. Values of democratic participation, institutional and social transformation, empowerment, and self-governance also emerge with the shift towards processes and practices. And yet, it is also important to consider whether and to what extent a focus on processes and practices risks undermining constitutional protections

Inclusive Equality and New Forms of Social Governance

Uncertainty persists regarding the meaning and application of the constitutional right of substantive equality, due in part to the focus on assessing the very nebulous and open-ended concept of human dignity. After reviewing two recent equality rights cases that illustrate the continued unpredictability of outcomes, the author examines constitutional equality from a more macro-historical perspective. In particular, she highlights how conceptions of constitutional equality are integrally connected to changing understandings of the role of the state. Tracing the shift from formal to substantive equality, she suggests that the current formulation of substantive equality resonates best with the ideological and governance assumptions of the post World War II social welfare state. In the context of neo-liberal shifts in government regulation and emerging new forms of social governance, the author maintains that we need to go beyond the effects-based analysis of substantive equality, which focuses on the instrumental and redistributive role of the state, to examine the process-based and institutional dynamics of the reproduction of social inequality. A constitutional conception of inclusive equality, attentive to both the effects and the processes of inequality, is outlined, including an expanded list of contextual factors for assessing equality rights violations. The author concludes by emphasizing the importance of democratic accountability, transparency and fairness in equality rights adjudication

Inclusive Equality and New Forms of Social Governance

Uncertainty persists regarding the meaning and application of the constitutional right of substantive equality, due in part to the focus on assessing the very nebulous and open-ended concept of human dignity. After reviewing two recent equality rights cases that illustrate the continued unpredictability of outcomes, the author examines constitutional equality from a more macro-historical perspective. In particular, she highlights how conceptions of constitutional equality are integrally connected to changing understandings of the role of the state. Tracing the shift from formal to substantive equality, she suggests that the current formulation of substantive equality resonates best with the ideological and governance assumptions of the post World War II social welfare state. In the context of neo-liberal shifts in government regulation and emerging new forms of social governance, the author maintains that we need to go beyond the effects-based analysis of substantive equality, which focuses on the instrumental and redistributive role of the state, to examine the process-based and institutional dynamics of the reproduction of social inequality. A constitutional conception of inclusive equality, attentive to both the effects and the processes of inequality, is outlined, including an expanded list of contextual factors for assessing equality rights violations. The author concludes by emphasizing the importance of democratic accountability, transparency and fairness in equality rights adjudication

Inclusion, Voice, and Process-Based Constitutionalism

This article explores a growing emphasis on process issues in the elaboration of constitutional rights and freedoms, focusing on the Canadian Charter of Rights and Freedoms. In a diverse range of contexts, judges are framing constitutional rights and freedoms in terms of the processes and practices they require, rather than in terms of specific constitutionally mandated substantive outcomes. Thus, constitutional rights have been interpreted to require a duty to negotiate, a duty to consult, a duty to accommodate, and entitlements to participate in democratic governance. The growing emphasis on processes and practices is positive to the extent that it resonates with new understandings of social regulation in modern society, empowers institutional and social actors as change makers, and reduces reliance on the judiciary as interpreters of the substantive content of rights in diverse social and institutional contexts. Values of democratic participation, institutional and social transformation, empowerment, and self-governance also emerge with the shift towards processes and practices. And yet, it is also important to consider whether and to what extent a focus on processes and practices risks undermining constitutional protections

Equality, Ideology and Oppression: Women and the Canadian Charter of Rights and Freedoms

The major objective of this article is to contribute to an understanding of the potential impact of the equality provisions of the Canadian Charter of Rights and Freedoms2 on the lives of women. This requires an awareness of the realities of women\u27s inequality in our society, an understanding of the legal conceptualization of equality, and a consideration of the role of law in remedying societal injustice. My focus in this article is on the second concern-that is, on legal theories of equality as they relate to women. I begin with a brief outline of the conflicting ideological approaches that infuse legal thought on general equality issues and their particular manifestations in the Canadian Charter. The interplay of these contrasting theories is then considered in a historical context of the legal treatment of women, followed by a discussion of the current debate about equality for women in Canada. Finally, I will offer some suggestions about the interpretive direction I think the equality provisions in the Charter should take

The Links Between Collective Bargaining and Equaliy

Working paper by Adelle Blackett and Colleen Sheppard, prepared for the ILO, analyzes the links between collective bargaining and equaliy at international level and addresses the efforts to monitor and regulate the right of association and collective bargaining

Contester la discrimination systémique au Canada : Droit et changement organisationnel

Cet article explore le sens et les complexités du concept de discrimination systémique en tant qu’outil de compréhension de l’exclusion et de l’inégalité dans les institutions de la vie quotidienne (écoles, universités, lieux de travail). Il évalue certaines des difficultés rencontrées lors de l’adoption de différentes approches normatives pour réparer et prévenir la discrimination systémique organisationnelle. Cet article analyse plus précisément le modèle du litige basé sur des plaintes, les initiatives réglementaires proactives comme l’équité salariale ou l’action positive ainsi que les régimes juridiques institutionnels informels.This article explores explores the meaning and complexities of the concept of systemic discrimination as a tool for understanding exclusion and inequality in the institutions of everyday life (schools, universities, workplaces). It assesses some of the difficulties encountered in endeavouring to use different regulatory approaches to redress and prevent systemic organizational discrimination, including the litigation model, proactive regulatory initiatives (e.g. pay equity, affirmative action) and informal institutional legal regimes

AIDS and Disability Employment Discrimination in and beyond the Classroom

Roughly a year ago, in Chalk v. U.S. District Court Central California, a United States appellate court authorized a teacher to return to his teaching duties, after a California school department had barred him from his classroom upon learning he had Acquired Immune Deficiency Syndrome (AIDS). The case parallels the widely reported events of the Eric Smith story of Autumn 1987. Teacher Smith was initially removed from his Shelburne County, Nova Scotia classroom, and reassigned to non-teaching duties after a medical secretary disclosed that Smith had tested positive for the AIDS virus. While Smith immediately refused the reassignment, he eventually accepted an educative position on the Nova Scotia Task Force on AIDS, which has recently completed its report