For more than a quarter century, Dianne Pothier—as teacher, scholar, practitioner, colleague, mentor, and citizen—has been a leader in the pursuit of substantive equality in Canada. Sometimes alone, and sometimes in collaboration with others, Dianne has fused her outstanding analytical skills with the ambitious aspiration of challenging the deep structures of inequality in Canada. The title of this special volume of the Canadian Journal of Women and the Law (CJWL) is inspired by a piece authored by Dianne in 1994 in the Alberta Law Review. In that piece, Dianne underscores the challenges of working through the multi-faceted nature of equity and access issues and urges us, in the light of Bertha Wilson’s Task Force report, to expand our conceptual horizons.1 This volume seeks to do that by taking on the still seemingly radical act of explicitly centring disability feminisms.
Critical disability scholars have explored how we contextualize, design, construct, and enforce education, communication, work, and benefits regimes, for example, in ways that are fundamentally rooted in the exclusion of people with mental and physical disabilities. Despite this growing body of work, feminist legal scholarship still struggles to take seriously the claims of critical disability scholarship and to bring to that scholarship the insights of feminisms in the context of law, social-legal inquiry, and legal regulation.
Looking through past volumes of the CJWL reveals that even it, a journal focused on the interactions of sex and gender in a broader frame of the social, economic, and political power laid bare by legal regulation, has paid relatively little attention to the contributions of critical disability scholars, to say nothing of developing the field as a whole. The work of authors such as Vicky D’Aoust (Tanis Doe), Estair Van Wagner, Janice Tait, Fiona Sampson, Judy Mosoff, and Carolyn McCarney, among others, come to mind as contributors to the Journal who have greatly enriched our pages because of their focus on the development of critical disability analysis. Add to that list Isabel Grant (who has contributed to this volume) and Dianne Pothier (in whose honour we have undertaken this work).
We hope that this edition of the Journal will inspire others to build on the work of these Canadian pioneers in the field. It seems that there is much work left to be done. In this issue, we profile some of the insights that might be garnered through an exploration of the interactions of critical disability theories and feminisms. The [End Page i] authors in the volume have engaged with a diverse array of topics, including: developing Dianne’s analysis of dignity; assessing what competency might mean for women with mental disabilities; reviewing critically the evolution of section 15(2) of the Canadian Charter of Rights and Freedoms; exploring cross-disciplinary insights that inform feminist critical disability theory; revealing how social programs invisibilize disabled women; and postulating about the potential for critical disability studies to inform the development of private law remedies.2
The volume opens with a piece by Suzanne Bouclin and Joëlle Pastora Sala. It builds on Dianne Pothier’s work on discrimination and human dignity, developing a “Pothienne perspective.” The Pothienne perspective serves the analysis of the particular case of regulation of obstructive solicitation in Winnipeg. In the pluralist tradition, Bouclin and Pastora Sala explore the complex ways in which formal decision-making bodies create and reinforce barriers. They expand the concept of dignity to reveal mechanisms through which street-engaged people might cope with their daily reality. Ultimately, the article makes a wonderful contribution to our understanding of how anti-poverty strategies might be adapted in the light of Pothier, Bouclin, and Pastora Sala’s insights.
The second article, by Janine Benedet and Isabel Grant, tackles the complex issue of competence to testify in sexual assault prosecutions for women with mental disabilities. Drawing on Dianne’s analysis of the distinction between ad hoc and system accommodations, Benedet and Grant engage in a critically constructive interrogation of the Supreme Court of Canada’s decision in R. v DAI, which addresses this matter.3 While they agree with the ultimate outcome of the majority decision, they express concerns about some of the assumptions underlying the Court’s reasoning. They also suggest an alternative approach that will enable the criminal justice system to recognize the experience of sexual assault for women with disabilities, one that in Dianne’s words “contemplat[es] diversity from the start.”
Next, we turn to a contribution by Jonnette Watson Hamilton and Jennifer Koshan. In “The Supreme Court, Ameliorative Programs, and Disability: Not Getting It,” the authors borrow from Pothier and Devlin’s work on dis-citizenship. In this article, they explore the recent Supreme Court of Canada decisions that give meaning to section 15(2) of the Charter. These are cases close to Dianne’s heart. She argued Alberta (Aboriginal Affairs and Northern Development) v Cunningham on behalf of the Women’s Legal Education and Action Fund before the Supreme Court of Canada.4 Ultimately, the authors document their concerns about the possibility that the evolving jurisprudence may serve to perpetuate [End Page ii] social exclusion and marginalization in a context that presumably was designed to serve the opposite purpose.
Kate Kaul’s “Vulnerability, for Example: Disability Theory as Extraordinary Demand,” investigates the relationship between feminism and disability from a different perspective than the first three essays. Drawing on her insights as a social and political theorist, rather than as a lawyer, Kaul develops a close reading of a number of critical disability and feminist theorists to unpack their shared concerns and contrasting demands. Focusing in particular on the functions of analogy and example in interdisciplinary disability theory—modes of analysis and argument that are also pivotal to legal reasoning—Kaul explores the complexity and potential of the concept of “vulnerability” for the advancement of an empowering and contextually situated critical feminist disability theory.
The fifth article, “Disability and Care: Still Not ‘Getting It’” by Nancy Hansen and Lorna Turnbull, also focuses on the dynamics of vulnerability through an analysis of how regulations under the Canada Pension Plan invisibilize a woman who became unable to work because of multiple sclerosis. Through an uncompromising deconstruction of the majority decision of the Federal Court of Appeal in Harris v Canada (Minister of Human Resources and Skills Development), Hansen and Turnbull argue that there is much to be done to translate the insights of feminism and critical disability theory into forms of argument that are intelligible to a judiciary trapped in the ideology of formal equality.5 They are careful to argue that such judicial closemindedness is not inevitable. The analysis and the outcome of the minority decision demonstrate that judges (and even governments) can in fact “get it”—if they want to.
Finally, in “‘I Wish the Supreme Court Thought More Like Dianne’: A Comment on Krangle v Brisco,” Darcy MacPherson turns our focus from public to private law, demonstrating the impact a critical disabilities approach might have for the evolution of remedies in tort law. Combining personal reflections with a contextual and outcomes-focused analysis, his article is a celebration of Dianne’s intellectual influence. In particular, MacPherson’s piece pushes us to think deeply about the interaction between public and private law, something Dianne would undoubtedly appreciate. It is a tribute to her frequently espoused claim that all law is public law.
Dianne has retired from teaching at the Schulich School of Law, but she is not yet done. As this special issue is going to print, she remains busy writing papers and attending conferences, almost always by invitation. While we think she believes that there has been some progress on the equality front in the last twenty-five years, she still gets it—that a critical feminist disability theory is very much a work in progress and that she, as well as many of us whom she has inspired, still have much to learn and to contribute. [End Page iii]
Kim Brooks is dean of the Schulich School of Law at Dalhousie University and previously held the H. Heward Stikeman Chair in the Law of Taxation in the Faculty of Law at McGill University and appointments at Queen’s University and the University of British Columbia. She teaches all areas of taxation, with particular interests in critical policy analysis, the interaction of high- and low-income country tax regimes, and other tax policy issues. A prolific SSHRC-funded scholar, she has served as president of the Canadian Association of Law Teachers, managing editor/secretary of the Canadian Journal of Women and the Law, co-chair of the National Steering Committee at the National Association of Women and the Law, editor of Women and Gender Law Abstracts, and chair of the Board of Directors at the Women’s Legal Education and Action Fund.
Richard Devlin is a professor of law at the Schulich School of Law at Dalhousie University. In 2005, he was appointed research professor at Dalhousie University, and this position was renewed in 2010. His areas of teaching include contracts, jurisprudence, legal ethics, and graduate studies. He has published widely in various journals, nationally and internationally. Recent books include editing Critical Disability Theory and Lawyers’ Ethics and Professional Regulation (2nd edition, 2012). In 2003, and again in 2010, he received the Hanna and Harold Bernett Award for Excellence in Teaching First Year. In 2008, he was a recipient of the Canadian Association of Law Teachers Award for Academic Excellence. He has been involved in the design, development, and delivery of Judicial Education programs in Canada and abroad for more than twenty years. In 2012, he agreed to serve as the founding president of the Canadian Association for Legal Ethics.
Footnotes
1. Touchstones for Change: Equality, Diversity and Accountability, A Report on Gender Equality in the Legal Profession (Ottawa: Canadian Bar Association, August 1993).
2. Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
3. R v DAI, 2012 SCC 5, [2012] 1 SCR 149.
4. Alberta (Aboriginal Affairs and Northern Development) v Cunningham, 2011 SCC 37, [2011] 2 SCR 670.
5. Harris v Canada (Minister of Human Resources and Skills Development), 2009 FCA 22, [2009] 4 FCR 330.
