LEAF and Pornography: Litigating on Equality and Sexual Representations

1994 ◽  
Vol 9 (01) ◽  
pp. 165-192 ◽  
Author(s):  
Karen Busby
Keyword(s):  
Supreme Court ◽  
Gay Men ◽  
Sexual Minorities ◽  
Legal Education ◽  
Supreme Court Of Canada ◽  
Obscenity Law ◽  
The Supreme Court

AbstractIn February 1991, the Supreme Court of Canada released R. v. Butler, a decision which upheld Canada's Obscenity Law by recognizing a relationship between pornography and sex inequality. This paper outlines the arguments made by the Women's Legal Education and Action Fund (LEAF) as intervenors in Butler, reviews how this decision could be interpreted, and offers for discussion arguments on some of the issues not addressed in Butler. In particular, it examines how LEAF's position affects lesbians and gay men and how the Butler decision can be used to advance equality arguments for sexual minorities. Given that Canada Customs have continued to discriminate against lesbians and gay men by targeting materials for these communities, feminists and other equality seekers must participate in the debate on how Butler will be interpreted and enforced.

scholarly journals ESSENTIALISM MAKES FOR STRANGE BEDMATES: THE SUPREME COURT CASE OF J.A. AND THE INTERVENTION OF L.E.A.F.

2012 ◽  
Vol 30 (1) ◽  
pp. 77
Author(s):  
Richard Jochelson ◽  
Kirsten Kramar
Keyword(s):  
Supreme Court ◽  
Present Article ◽  
Identity Politics ◽  
Legal Education ◽  
Court Case ◽  
Supreme Court Of Canada ◽  
Obscenity Law ◽  
The Supreme Court ◽  
Supreme Court Case ◽  
Historical Moment

In the recent case of R. v J.A, the majority of the Supreme Court of Canada determined that an unconscious person could not consent in advance to sexual touching. This paper reviews the majority reasoning and questions whether the intervention of the Women’s Legal Education and Action Fund [LEAF] penetrated the reasoning. The majority couched its reasoning in the interpretive tenets of judicial conservatism. Yet this conservatism aligned with the equality-based submissions of LEAF. Moments of such converging ideologies are relatively unique in the jurisprudence. This convergence is compared with a notable historical moment of convergence in the development of indecency and obscenity law in Canada. This time, however, LEAF’s rationales are more likely to meet little in the way of academic or activist critique because of the changing nature of identity politics in Canada.Dans la récente affaire R. c. J.A., la majorité des juges de la Cour suprême du Canada a établi qu’il ne peut y avoir consentement à l’avance à des actes sexuels commis pendant qu’une personne est inconsciente. Le présent article passe en revue le raisonnement de la majorité et examine si l’intervention du Fonds d’action et d’éducation juridiques pour les femmes (FAEJ) a influencé ce raisonnement. La majorité des juges a fondé son raisonnement sur les principes d’interprétation du conservatisme judiciaire. Or, ce conservatisme allait dans le sens des arguments du FAEJ en matière d’égalité. Un tel degré de convergence d’idéologies est relativement rare dans la jurisprudence. La convergence dans cette affaire est comparée à celle, notable et historique, qu’on a connue lors de l’élaboration de la législation sur l’indécence et l’obscénité au Canada. Cette fois-ci, cependant, les motifs du FAEJ vont probablement être peu critiqués par les milieux universitaire et militant, étant donné l’évolution de la politique identitaire au Canada.

scholarly journals After Labaye: The Harm Test of Obscenity, the New Judicial Vacuum, and the Relevance of Familiar Voices

2009 ◽  
Vol 46 (3) ◽  
pp. 741 ◽  
Author(s):  
Richard Jochelson
Keyword(s):  
Supreme Court ◽  
Freedom Of Expression ◽  
Tolerance Test ◽  
Supreme Court Of Canada ◽  
Obscenity Law ◽  
The Supreme Court ◽  
Tolerance Approach ◽  
Lower Courts ◽  
The Subject ◽  
Community Standards

In R. v. Labaye, the Supreme Court of Canada finally retired the community standards of tolerance test of obscenity. The test had been the subject of much academic critique, a matter that reached its zenith in the period following Little Sisters Book and Art Emporium v. Canada (Minister of Justice), in which a gay and lesbian bookshop contested the procedures and legislative regime of customs officials in detaining its imports. The engagement in the literature on the efficacy of the community standards test that followed was often heated, always interesting, and ultimately unresolved. To date, we have not seen any clarifying applications of the newly proposed harm test by the Supreme Court, nor have we seen a profound articulation in any lower courts. Subsequently, the academic discussion has slowed to a crawl. In this article, the author reviews four accounts of the community standards test that were prominent following Little Sisters, and asks if the newly proposed Labaye standard meets their concerns. The Labaye case provides much fodder for the previous critics and supporters of a community standards of tolerance approach to analyze. After a critical analysis of the new Labaye test, the author concludes that the concerns have not been muted by the retirement of the community standards test, even if the voices have been. The engaged voices heard in the aftermath of Little Sisters should not hold back and they should not abandon the work to be done in obscenity law and freedom of expression discourse generally.

The concept of human dignity in the case-law of the Supreme Court of Canada on Charter Equality Rights

2021 ◽  
Vol 30 (5) ◽  
pp. 118-137
Author(s):  
Tatiana Vasilieva ◽  
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Supreme Court ◽  
Human Dignity ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Equality Rights ◽  
The Supreme Court ◽  
Additional Burden ◽  
The Impact

This article explores the evolution of the Supreme Court of Canada’s approach to the application of the concept of human dignity in constitutional equality cases. Traditionally, in human rights cases, this concept serves only to strengthen the argument, to show that the violation affects the person’s intrinsic worth. It is only in Canada and in South Africa that there is experience in applying the concept as a criterion for identifying discrimination. In 1999, in Law v. Canada, the Supreme Court recognized the purpose of Article 15(1) of the Canadian Charter of Rights and Freedoms of 1982 to be the protection of human dignity and stated that discrimination must be established based on assessment of the impact of a program or law on human dignity. However, in 2008, in R. v. Kapp, the Court noted that the application of the concept of human dignity creates difficulties and places an additional burden of prove on the plaintiff. It is no coincidence that victims of discrimination have preferred to seek protection before human rights tribunals and commissions, where the dignity-based test is not used. Subsequently, the Supreme Court of Canada rejected the use of the concept of human dignity as a criterion for identifying discrimination. The unsuccessful experience of applying the concept of human dignity as legal test has demonstrated that not every theoretically correct legal construction is effective in adjudication.

Judgment of the Supreme Court of Canada of February 28, 2020, on Nevsun v. Araya: a “quiet revolution” in the assessment of the status of corporations under public international law?

2021 ◽  
Vol 11 (2) ◽  
pp. 25-39
Author(s):  
Vera Rusinova ◽  
Olga Ganina
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
International Law ◽  
Supreme Court Of Canada ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Public International Law ◽  
The Supreme Court ◽  
International Human

The article analyses the Judgment of the Supreme Court of Canada on the Nevsun v. Araya case, which deals with the severe violations of human rights, including slavery and forced labor with respect of the workers of Eritrean mines owned by a Canadian company “Nevsun”. By a 5 to 4 majority, the court concluded that litigants can seek compensation for the violations of international customs committed by a company. This decision is underpinned by the tenets that international customs form a part of Canadian common law, companies can bear responsibility for violations of International Human Rights Law, and under ubi jus ibi remedium principle plaintiffs have a right to receive compensation under national law. Being a commentary to this judgment the article focuses its analysis on an issue that is of a key character for Public International Law, namely on the tenet that international customs impose obligations to respect human rights on companies and they can be called for responsibility for these violations. This conclusion is revolutionary in the part in which it shifts the perception of the companies’ legal status under International Law. The court’s approach is critically assessed against its well-groundness and correspondence to the current stage of International law. In particular, the authors discuss, whether the legal stance on the Supreme Court of Canada, under which companies can bear responsibility for violations of International Human Rights Law is a justified necessity or a head start.

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