In its judgement on the constitutionality of a unilateral declaration of independence by Quebec, the Supreme Court claimed to be guided by the implicit or explicit constitutional principles of democracy, federalism, rule of law, and respect for minorities. French-English duality, as part of a “multination” conception of Canada, was not among these, despite being crucially implicit in the Court's reasoning. Had the principle of duality been articulated, it would have enhanced the theoretical cohesion of the judgement; more importantly, it would have furthered a necessary dialogue outside Quebec, insofar as national reconciliation requires the recognition of Quebec's distinctiveness by the rest of Canada. The secession reference was therefore a significant opportunity missed.

The Nunavut Land Claim Agreement commits federal and territorial governments to the recruitment and training of Inuit for positions throughout government. In the justice sector, there is currently a major shortage of Inuit lawyers or future judges. However, there also appears to be a fundamental mismatch between what existing law schools offer and what Inuit students are prepared to accept. A northern-based law school might remedy some of these problems. However, support for a law school requires un-thinking certain key tenets of legal education as we know it in Canada. In particular, it may require a step outside the university-based law school system. Universities appear to be accepted as the exclusive guardian of the concept of academic standards. Admission standards, in particular, serve as both a positivist technology of exclusion, and a political rationale for the persistence of majoritarian institutions as the major means of training members of disadvantaged communities. Distinctive institutions – eventually working with university-based law schools – have the potential to help bridge the education gap between Inuit and other Canadians. In so doing, they have the potential to train a critical mass of Inuit to meaningfully adapt the justice system to become a pillar of the public government in the Inuit homeland of Nunavut.

The relationship between scientific knowledge and legal discourse is raised once again by a recent decision of the Supreme Court of Canada, a case involving a young Aboriginal woman who was pregnant and ordered by the court to remain in a drug treatment program at a health center until the baby was born. Her glue-sniffing habit was deemed dangerous to the normal development of the fetus. The Court held that her solvent-dependency did not justify the original court action, but both the Court and the various interveners disregarded the current state of our knowledge on the fetal syndromes. There is thus a continuing disconnect between the scientific understanding of fetal risk and the development of Constitutional law around women's reproductive rights. This paper reviews the case and follows it through the appellate process; we examine the research literature on fetal syndromes tracking the changes over time. Finally we comment on the interventions by the Winnipeg Child and Family Services, the Women's Health Rights Coalition, by The Canadian Civil Liberties Association, and both The Canadian Abortion Rights Action League and the Women's Legal Education and Action Fund.

This paper examines changes in Canadian sentencing legislation between 1984 and 1997 in relation to M. Foucault's genealogy of discursive practices. Foucault suggested three regulatory practices which were associated with contemporary projects of governmentality: punishment, discipline and risk management. The legislative changes regarding sentencing in court and conditional release decisions are reviewed to assess the extent to which the various regulatory practices have been adopted. It is suggested that Canadian sentencing discourse has become increasingly bifurcated around a combination of risk management and disciplinary strategies which are presented in a context of denunciation. The character of this arrangement and several of its anomalous features are examined.

This paper gives an account of the implications of the Supreme Court of Canada's case-law to section 380 of the Canadian Criminal Code defining fraud. It scrutinizes the Supreme Court's construction of some of the constitutive elements of fraud such as dishonesty and prejudice caused to the victim. The author then tries to make apparent the implicit logic followed by the Supreme Court in this matter. He asks himself which values, social models, and practices the Judges want to put forward through their policy making in regard to fraud. Finally, the author contrasts the Supreme Court's rationale with different sociological perspectives stressing current practices of economic exchange and risk-taking by economic players, particularly by contractors. Among other things, the author tries to understand, in the light of sociology, what is dishonest enrichment, what economical risks are considered tolerable and what are natural hindrances to securing economic activities.

Legal method, or the way in which legal claims are processed, is an integral component of the law's authority to include, exclude and deny claims and experiences. This paper explores the issue of sexual orientation and the legal construction of family as it emerges in the decision of the Supreme Court of Canada in Egan v. Canada. The analysis includes a detailed consideration of the ways in which the Supreme Court of Canada incorporates assumptions about the nature of family life as a relevant factor in its assessment of the meaning of the word “spouse” under the Old Age Security Act. The process by which notions of the normal family become legitimized through legal discourse is deconstructed using the work of Mary Jane Mossman and Michel Foucault. Mossman develops an analytic framework which illuminates the ways in which legal method works to preserve the power of law and the illusion that law produces “truth.” Michel Foucault considers both the ways in which knowledge is produced as truth, and its integral links to power.

This paper deals with a crucial problem in feminist theory and in law, namely the issue of the “Woman/Women” category. Does the presence of a single man invalidate the label and remove the issues from the field of equality between the sexes? Moreover, in order to avail oneself successfully of the non-discrimination provision of the Canadian Charter of Rights and Freedoms, does one necessarily have to prove prejudice towards all women, or seek a remedy likely to improve the situation of all women? Is the category “Woman” necessarily universal and all-embracing? To answer these questions, the author deals with the relationship between women and men and concludes that this relationship is not one of absolute binary opposition, but rather of secular domination. The author then analyzes the category of Women in relation to society as a whole where women are often subsumed into minorities, absorbed into the family or collapsed into “Universal” Woman. Fully recognizing the arbitrary and artificial character as well as the deceptive and reductionist aspects of categories per se, the author observes nonetheless that the law obliges us to keep the category of “Woman” for as long as women will not have collectively attained an economic, legal, political, symbolic, etc. status equal to that of men collectively.