Volume 40 (May 2019)
ARTICLES
Protecting Food Security as a Socio-Economic Right in Ethiopia Rachel Zuroff
2019 CanLIIDocs 3714 The Milkmaid’s Tale: Veganism, Feminism, and Dystopian Food Futures Angela Lee
Re(de)fining Prostitution and Sex Work: Conceptual Clarity for Legal Thinking Debra Haak
Freedom of Association and Indigenous Governance Kate Scallion
Mind the (Liability) Gap: The Relevance of the Duty of Care to Hold Transnational Corporations Accountable Adeline Michoud
Wait and See: Regulating Ontario’s Litigation Lending and Commercial Litigation Funding Markets Josh Tayar
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Citation (2019) 40 Windsor Rev Legal Soc Issues.
2019 CanLIIDocs 3714 WINDSOR REVIEW OF LEGAL AND SOCIAL ISSUES 2018-2019 EDITORIAL BOARD
Volume 40
Editor in Chief Terra Duchene
Business Manager Executive Articles Editor Solicitations Editor George Soules Jack Saraiva Evon Gayle
Summer Business Manager Cristina Fulop
Copy Editors Citations Editors Solicitations Associates Melanie Goodfellow Kaffie Abdirashid Margarita Dvorkina Adrian Halpert Savreet Chuckal Kan-Wook Lee 2019 CanLIIDocs 3714 Rachel Herscovici Tully Cogswell Nimani Samarakkody N.A. Kandel Rebecca Flynn Rubaina Singh Alessandra Quennesson Cristina Fulop Ali Tejani Julie Sakran Natasha Stevanovski Claudia Tsang Panipal Sarkis-Michael Jessica Wong
Associate Editors Imad Alame Liis Jakobson Adrin Shojae Adrian-Zita Bennett Mohamed Kurdi Primiya Sivamoorthi Erli Bogdani Kayley Leon Bennison Smith Kelsey Buchmayer Nicole Mahadeo Lauren Stokes Robert Cohen Maria Patterson Farnaz Talebpour Ayesha De Silva Erin Pervin Heather Tuck Patricia Dimakos Jacob Robinson Michelle Vinitsky Ramisha Faroq Taylor Schopp Steven Vitella Narmada Gunawardana Sharath Voleti
Business Associates Claire Allsop Jocelyn Fritz Leah Burlock Novera Hasan Khan
Digital and Social Media Editor Savreet Chuckal
Faculty Advisor Professor Claire Mummé
2019 CanLIIDocs 3714 Vol. 40 Windsor Review of Legal and Social Issues 1
PROTECTING FOOD SECURITY AS A SOCIO-ECONOMIC RIGHT IN ETHIOPIA
Rachel Zuroff*
I. INTRODUCTION
International human rights law recognizes and protects the right to food.1 However, the growing worldwide trend in transnational “large-scale acquisitions and leases of arable land” (“LSLAs”)2 puts this human right at risk by displacing communities and depriving them of the natural resources on which they depend.3
In Ethiopia, the risks posed by LSLAs to the right to food are acutely illustrated 2019 CanLIIDocs 3714 by the situation in the Gambella, a region in western Ethiopia principally
* Rachel Zuroff obtained a BCL//LLB from McGill University's Faculty of Law. After graduation, she articled at the Food and Agriculture Organization of the United Nations and completed a Judicial Fellowship at the International Court of Justice. This paper was originally written as part of an independent research project under the supervision of Professor René Provost.
1 Universal Declaration of Human Rights, GA Res 217A(III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 71 [UDHR]; International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) [ICESCR]. 2 Often known as land grabs. 3 See e.g. Anuradha Mittal & Elizabeth Fraser, Losing the Serengeti: The Maasai Land that was to Run Forever (Oakland: Oakland Institute, 2018); Frédéric Mousseau & Peiley Lau, The Great Timber Heist: The Logging Industry in Papua New Guinea (Oakland: Oakland Institute, 2016); Rede Social de Justiça e Direitos Humanos, GRAIN, Inter Pares & Solidarity Sweden, “Foreign Pension Funds and Land Grabbing in Brazil” (November 2015), online: GRAIN
II. INTERNATIONAL LAW AND THE RIGHT TO FOOD
Several international legal instruments establish the existence of the right to food. These include Article 25 of the Universal Declaration of Human Rights, widely recognized as customary international law, and adopted by Ethiopia, and Article 11 of the International Covenant on Economic, Social and Cultural Rights (“ICESCR”), signed and ratified by Ethiopia. According to the
4 Felix Horne & Laetitia Bader, “‘Waiting Here for Death’: Forced Displacement and ‘Villagization’ in Ethiopia’s Gambella Region”, Human Rights Watch (16 January 2012), online:
Committee on Economic, Social and Cultural Rights (“CESCR”), the right to food is realized when every person has at all times the necessary physical and economic access to adequate food or the means for its procurement.5 Moreover, the CESCR recognizes that the right to food is not to be interpreted in a narrow or restrictive sense, which equates it with a minimum package of calories, proteins, or other specific nutrients.6 In the words of Olivier De Schutter, the UN Special Rapporteur on the Right to Food from 2008–2014, the right to food means:
[R]egular, permanent and unrestricted access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of
the people to which the consumer belongs, and which ensure a physical 2019 CanLIIDocs 3714 and mental, individual and collective, fulfilling and dignified life free of fear.7
De Schutter thus warns against confusing the realization of the right to food with increasing aggregate production of agricultural products or with improved macro-economic indicators.8 Like all human rights, the right to adequate food imposes three levels of obligations on State parties: the obligations to respect, to protect, and to fulfil. The obligation to respect requires State parties not to take any measures that result in preventing existing access to adequate food. The obligation to protect requires States to take measures to ensure that enterprises or individuals do not deprive individuals of their access to adequate food. Finally, the obligation to
5 Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights: General Comment 12: The Right to Adequate Food, UNESCOR, 20th Sess, 1999, UN Doc E/C 12/1999/5 at para 6 [General Comment 12]. 6 Ibid. 7 Office of the High Commissioner for Human Rights, “Special Rapporteur on the right to food”, online: United Nations Human Rights Office of the High Commissioner
III. AN OVERVIEW OF LARGE-SCALE LAND ACQUISITIONS AND LEASES
Although LSLAs are not a new phenomenon, the past decade has seen a marked increase in their scope, scale, and speed of conclusion.12 Whereas before 2008 the average annual expansion of global agricultural land was less than four million hectares, a World Bank study found that “approximately 56 million hectares worth of large-scale farmland deals were announced even before the end of 2009.”13 By 2018, close to 50 million hectares of land were subject to
9 General Comment 12, supra note 5 at para 15. 10 ICESCR, supra note 1, art 2; General Comment 12, supra note 5. 11 High Commissioner for HR, supra note 7. 12 Canada, Parliamentary Information and Research Service, Farmland Grabbing in Canada (Background Paper), by Khamla Heminthavong & Alexandre Lavoie, Publication No 2014- 101-E (Ottawa: Library of Parliament, 1 June 2015) at 1. 13 Klaus Deininger & Derek Byerlee, Rising Global Interest in Farmland: Can It Yield Sustainable and Equitable Benefits? (Washington: World Bank, 2011) at xiv. Vol. 40 Windsor Review of Legal and Social Issues 5 such transactions.14 Several global events appear to be driving the rise in LSLAs, including the 2008 financial, energy, and food crises. These events sparked both private sector expectations of higher agricultural commodity prices and government concerns about longer-term food and energy security. A surge of foreign investments in agriculture followed. For investor countries, LSLAs offer a food security strategy to reduce dependency on imports. For private investors, LSLAs are speculative ventures based on a growing interest in biofuels, attractive rates of return in agriculture, the use of farmland as a hedge against inflation, and the increasing commodification of land and water rights.15 Investors seeking to justify the expanding market in land deals offer a list of benefits that will accrue to host countries. These include increases in food production, GDP, availability of capital, technology transfers, access to export 2019 CanLIIDocs 3714 markets, credit, employment, as well as infrastructure and economic development in rural areas.16 While there are potential benefits, these investments also present risks, in particular to the food security of the rural poor and indigenous communities. De Schutter emphasizes the potentially devastating impact of LSLAs on the food security of the world’s poorest: as the pressures on land rise through LSLAs, small-scale farmers, artisanal fishers, pastoralists, indigenous peoples, and forest-dwelling populations face increased threats of eviction and enclosure.
14 Land Matrix, online:
Additional risks posed by large-scale land investments include environmental harm caused by badly managed and unsustainable projects, violent conflict over land rights as these are brought into contest by new arrivals, polarization and instability resulting from the increased levels of conflict, as well as broken promises by corporations and local governments regarding the creation of local jobs, the development of local infrastructure, and the provision of compensation to those displaced.17 Indirect harm may also result as effects spread outwards from the acquired land. These include secondary effects that may occur in other parts of the country as land users pushed from higher-value lands are forced to encroach upon and increase the burden on lower-value lands.18
a. LSLAs Threaten Food Security in Ethiopia 2019 CanLIIDocs 3714
LSLAs are particularly pronounced in Ethiopia where the government has transferred at least 3.5 million hectares of land to investors and has opened nearly another 11.55 million hectares to investment.19 Due to Ethiopia’s state- owned land tenure system, the government’s control over land deals is unusually strong.20 The Ethiopian government claims these investments will benefit the country through direct investment and multiplier effects, increased foreign exchange reserves, technology transfers, infrastructure development, on-farm wage employment, and increased food production.21 Despite the promise of these benefits, there are reasons to fear that LSLAs will instead put the right to food at risk in Ethiopia by undermining the
17 Ibid at 8. 18 Cotula et al, supra note 17. 19 Felix Horne, Understanding Land Investment Deals in Africa: Country Report, Ethiopia (Oakland: Oakland Institute, 2011) at 1; Ethiopia, Ethiopian Investment Commission, Ethiopia: A Preferred Location for Foreign Direct Investment in Africa, An Investment Guide to Ethiopia (2015) at 31–32 [Horne]. 20 Constitution of the Democratic Republic of Ethiopia, 1995, s 40(2) (“[l]and is a common property of the Nations, Nationalities and Peoples of Ethiopia and shall not be subject to sale or to other means of exchange”). 21 Wendy Liu, G Alex Sinha & Rikki Stern, Unheard Voices: The Human Rights Impact of Land Investments on Indigenous Communities in Gambella (Oakland: Oakland Institute, 2013) at 6–7 [Liu, Sinha & Stern]; Horne, supra note 19 at 34. Vol. 40 Windsor Review of Legal and Social Issues 7 country’s already tenuous level of food security. This is because there are currently no mechanisms in place to ensure that the implementation of LSLAs respect the right to food of vulnerable groups. As of 2017, Ethiopia remains one of the world’s largest recipients of food aid and is ranked the 99th most food insecure country out of 113 countries surveyed by the Food Security Risk Index.22 Already, an estimated 13 million Ethiopians face severe food insecurity each year. Without effective safeguards from the harms associated with LSLAs, there are real risks that this number could increase significantly. For example, although Ethiopia’s Constitution does provide safeguards for the rights of land holders, these provisions are too often ignored by the government to be relied on.23 Moreover, the system of state-owned land is detrimental to the rights of land users because it decreases their security of 2019 CanLIIDocs 3714 tenure. This is illustrated by accounts from the Gambella where Anuak communities have been displaced from their traditional lands to make way for foreign land investments without consultation or compensation.24 Likewise, there are currently no mechanisms in place to ensure that the implementation of LSLAs comply with promises made during negotiations. For example, the Ethiopia government has promised that LSLAs will contribute to improved domestic food security through increased food production that remains in the domestic market at accessible prices.25 Yet, the actual incentives offered by the government are more likely to ensure that food production is exported out of the country, thereby undermining domestic food security.26
22 Global Food Security Index, “2017 GFSI overall rankings table”, The Economist (2017), online:
Furthermore, the risk of negative impacts arising from land deals is particularly pronounced where there is no evidence of community consultation, as is predominantly the case in Ethiopia.27 Where there is no consultation, there is no opportunity to align the use of the land by the local community with the investors’ plans. Instead of considering the actual use of the land, government officials simplify complex and diverse land use patterns into easily legible binaries of use/non-use. As a result, the government can identify areas used for shifting patterns of cultivation, pastoralism, or communal use as unused or under used land. These lands are then considered open for lease. Displaced farmers are forced to find farmland elsewhere and thereby contribute to competition and tension with other farmers over increasingly scarce access to land and other resources. Thus, despite the potential benefits espoused by governments and 2019 CanLIIDocs 3714 investors, these deals have the potential to threaten food security and violate the right to food in Ethiopia.
b. LSLAs Contribute to Dispossession and Displacement in the Gambella
The risks posed by LSLAs to the right to food are acutely illustrated by the situation in the Gambella where the Ethiopian government is forcibly displacing hundreds of thousands of Anuak from their ancestral land to new villages that lack adequate food, farmland, health care, and educational facilities. This process is taking place through fear, violence, and intimidation, rather than consultation or compensation. According to Human Rights Watch, Ethiopian police and soldiers have repeatedly threatened, beaten, and arbitrarily arrested villagers who resist the land transfers.28 Although not formally admitted by the government, this program can be characterized as an effort to make way for foreign land investments, given that many of the areas from which the Anuak have been displaced have been subsequently leased to investors. Human Rights
27 Liu, Sinha & Stern, supra note 21 at 8. 28 Horne & Bader, supra note 4 at 29. Vol. 40 Windsor Review of Legal and Social Issues 9
Watch has found that 42% of the land area in the Gambella is either being marketed for lease to investors or has already been awarded.29 Once moved to villages, the Anuak are unable to practice their traditional use of shifting cultivation and pastoralism. Forcibly displaced to villages, pastoralists can no longer practice their cattle-based livelihoods and must instead rely on settled cultivation.30 Similarly, those who traditionally used shifting cultivation are forced to grow crops in a single location, risking the depletion of vital nutrients from the limited soil to which they have access. Despite the promise of improved access to government services, the new villages often lack them entirely.31 The “villagization” process has thus drastically undermined the food security of the relocated Anuak, rendering them dependent on food aid and leading to endemic hunger and even cases of starvation.32 2019 CanLIIDocs 3714 In justifying its actions in the Gambella, the government has identified the land as unused.33 Such classification allows the government to bypass any constitutional provisions and laws that protect landholders from being relocated.34 However, claims that the land is unused or underused are based on criteria that are necessarily simpler than the diversity of land uses found in the Gambella. Due to the Anuak practice of shifting cultivation and pastoralism, their lands might appear unused or underused to a government census. Yet, this process of simplification is unable to grasp the diverse modes of land use practiced by the Anuak or the significance of the land not only as a resource for their food security and their livelihoods, but also as an integral part of their culture. By leasing large tracts of land to transnational corporations in the Gambella, Ethiopia has thus violated its obligations to respect, protect, and fulfill the right to food. Ethiopia has failed to respect the right to food because the enclosures that result from the land transfers in the Gambella prevent
29 Ibid at 17. 30 Ibid. 31 Ibid at 54, Appendix VII. 32 Ibid. 33 Ibid at 18. 34 See e.g. note 25. 10 Windsor Review of Legal and Social Issues Vol. 40 individuals using the land from accessing existing food sources. Ethiopia has failed to protect the right to food by allowing enterprises to deprive individuals of their access to adequate food through the creation of enclosures that displace individuals from the land they use for their food resources. Finally, Ethiopia has failed to fulfill the right to food because no efforts have been made to reform the current land tenure system to strengthen the security of the Anuak’s access to and use of the land and resources on which they depend. The conclusion that the Ethiopian government’s actions in the Gambella amount to a human rights violation is supported by the ground breaking decision from the African Commission (“the Commission”) on Human and Peoples’ Rights, the Social and Economic Rights Action Center and the Center for Economic and Social Rights/Nigeria.35 In this case, the Commission applied the 2019 CanLIIDocs 3714 interpretation given by the CESCR to the alleged violations of socio-economic human rights committed by the Nigerian government in Ogoniland. The Commission recognized that international human rights impose four levels of duties on States: the duty to respect, protect, promote, and fulfil economic, social, and cultural rights.36 First, the Commission explained that the obligation to respect requires States to “refrain from interfering with the enjoyment of fundamental rights.”37 Specifically, the obligation includes the State’s duty “to respect the free use of resources owned by or at the disposal” of any individual for the purpose of rights-related needs.38 This finding is fundamental to the situation in the Gambella, because the land leased by the Ethiopian government was already being used by the Anuak to secure the resources necessary for their food security. The transfer of their lands by the government is therefore a violation of the State’s duty to respect human rights as interpreted by the CESCR and the Commission.
35 African Commission on Human and Peoples’ Rights, “155/96 Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) / Nigeria”, online (pdf):
Second, the Commission found that the obligation to protect right- holders requires the State to provide effective legislation and remedies.39 Currently, in the Gambella, the government has neither implemented legislation to effectively promote the security of tenure of the Anuak against land transfers, nor has it provided effective remedies where land transfers have resulted in the inability of the Anuak to access the resources necessary for their basic food needs. Third, the Commission explained that the obligation to promote human rights means that States must take positive actions such as “promoting tolerance, raising awareness, and … building infrastructures.”40 Although this finding does not illustrate a specific violation on the part of the Ethiopian government, it has the potential to be used in advocacy struggles against the rights violations taking 2019 CanLIIDocs 3714 place in the Gambella. This could include the development of local normative cultures in which decisions regarding LSLAs are taken while keeping in the mind the potential risks to vulnerable groups. Finally, the Commission found that the obligation on States to fulfil their human rights commitments indicates a positive expectation on the part of the international community that the State will “move its machinery towards the actual realisation of the rights.”41 This is related to Article 2 of the ICESCR which binds States to take steps towards achieving the full realization of the rights contained within the treaty. This finding is of importance in pressuring States to act on their obligations and to implement reforms that will secure the right to food in the context of increasing foreign land investments. The harm occurring in the Gambella thus amounts to a violation of Ethiopia’s obligation to realize the right to food on its territory. The rest of this paper will address how international human rights law can be leveraged to protect the Anuak against state violations of their right to food.
39 Ibid at para 46. 40 Ibid. 41 Ibid at para 47. 12 Windsor Review of Legal and Social Issues Vol. 40
IV. IS IT FEASIBLE TO USE SOCIO-ECONOMIC HUMAN RIGHTS TO ACHIEVE FOOD SECURITY? a. Theoretical Critiques of using Economic, Social, and Cultural Human Rights
Despite their entrenchment in international law, the real challenges raised by economic, social and cultural rights have been extensively explored in the academic literature.42 By way of example, this section will examine three major arguments developed by Aryeh Neier against socio-economic human rights, as well as a number of commonly raised critiques catalogued by Ellen Wiles. First, Neier contends that socio-economic human rights intrude into an arena where the democratic process, rather than judicial fiat, ought to prevail. 2019 CanLIIDocs 3714 Neier maintains that a rights discourse is not the appropriate approach by which to achieve a fairer distribution of the world’s resources because, used as such, the rights discourse illegitimately intrudes into a fundamental role of the democratic process.43 Public discussion and negotiation, rather than adjudication, are essential to the legitimate distribution of state resources necessary for the realization of socio-economic human rights. Decisions
42 See e.g. Aryeth Neier, “Social and Economic Rights: A Critique” (2006) 13:2 Hum Rts Brief 1 [Neier]; Ellen Wiles, “Aspirational Principles or Enforceable Rights? The Future for Socio- Economic Rights in National Law” (2006) 22:1 Am U Int L Rev 35 [Wiles]; Kenneth Roth, “Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization” (2004) 26:1 Hum Rts Q 63 [Roth]; Cass Sunstein, “Social and Economic Rights? Lessons from South Africa” (2001) 11:4 Const Forum 124 [Sunstein]; David M Beatty, “The Last Generation: When Rights Lose Their Meaning” in David M Beatty, ed, Human Rights and Judicial Review: A Comparative Perspective (Boston: Martinus Nijhoff, 1994) 321; Ademola Oladimeji Okeowo, “Economic, Social and Cultural Rights: Rights or Privileges?” (12 December 2008), online:
44 Neier, supra note 42 at 1–2. 45 Ibid. 46 Ibid. 14 Windsor Review of Legal and Social Issues Vol. 40 progressively, this characterization represents an incomplete picture.47 Many socio-economic rights are instantly realizable.48 Moreover, States retain a minimum core of obligations which are of immediate effect for all rights. For example, States are absolutely prohibited from taking retrogressive measures that undermine the current levels of the right’s enjoyment within the State. Accordingly, the structure of socio-economic human rights is not a sufficient reason to reject such rights where they may be of help in protecting the inherent dignity of individuals. Third, Neier contends that the protection of civil and political rights has proven to be one of the most effective instruments towards increasing social and economic justice, the primary goal of socio-economic human rights.49 Neier proposes that to promote social and economic justice may in fact counter- 2019 CanLIIDocs 3714 intuitively involve rejecting the introduction of socio-economic rights into the human rights discourse because of the need to safeguard the strength of civil and political rights against the detrimental influence of the logic of socio-economic human rights.50
47 The African Charter of Human Rights does not include a similar provision regarding the progressive realization of economic and social human rights. 48 Committee on Economic, Social and Cultural Rights, Report on the Fifth Session, UNESCOR, 1990, Supp No 3, UN Doc E/C 12/1990/8 at 32 (categorizing the following provisions in the International Covenant on Economic, Social, and Cultural Rights as self- executing: Article 3 (equal rights for men and women), Article 7(a)(i) (equal pay for equal work), Article 8 (right to form trade unions and strike), Article 10 (3) (right of children to special protection), Article 13(2)(a) (free, compulsory primary education), Article 13(3) (liberty to choose a non-public school), Article 13(4) (liberty to establish schools), and Article 15(3) (freedom for scientific research and creative activity)). 49 Neier, supra note 42 at 3. 50 Neier, supra note 42; see Wiles, supra note 42 at 56–58 (Wiles also considers the argument that socio-economic rights could counterintuitively undermine the rights of the disadvantaged, poor, and marginalized because of inequality in access to justice in any society. Instead of allowing socio-economic human rights to attain their objective of improving social justice, wealthy elites could instead coopt these rights to improve their already elevated standard of living. However, Wiles notes that as with any rights-adjudication, judges are capable of showing sensitivity to context and drawing lines between reasonable and unreasonable claims. States can also address these issues by enabling specific mechanisms to ensure equal access to justice, such as public interest litigation and procedural flexibility). Vol. 40 Windsor Review of Legal and Social Issues 15
The final argument identified by Neier would be compelling if socio- economic human rights did indeed have the described devastating impact on civil and political human rights. However, when appropriately framed to avoid the risks identified by Neier, socio-economic human rights stand out as a valuable tool to reduce human suffering. Socio-economic human rights should, therefore, not be lightly dismissed. In addition, Wiles has catalogued some of the most common fears relating to the judicial enforcement of socio-economic human rights. One critique identified by Wiles is that because core socio-economic issues such as nutrition, education, health, housing, income, and social security are already covered in developed countries by welfare state provisions and regular law, the entrenchment of new enforceable rights is unnecessary and undesirable, because 2019 CanLIIDocs 3714 it would eat into valuable public resources and add an extra workload to an already overburdened judiciary.51 However, Wiles notes that without an entrenched set of enforceable rights, the degree of creative judicial interpretation used to achieve just results on what are clearly socio-economic rights can border on the absurd.52 Moreover, this kind of judicial creativity is not always possible and does not represent a reliable approach. Directly recognizing the legal enforceability of socio-economic rights is, thus, a better approach. Another critique raised by Wiles is the alleged distinction made between socio-economic rights as “positive rights” that require the State to expend resources to provide a remedy and civil and political rights as “negative rights” that simply require the State to refrain from unjust interference.53 One counter- argument to this critique is that civil and political rights also require the disbursal of State resources. For example, State resources are required to build the necessary infrastructure to achieve the right to vote and the right to a fair trial. Wiles also examines the oft raised concern that socio-economic rights cannot be legally enforceable, because they violate the principle of legal
51 Wiles, supra note 42 at 40; see also Craig Scott & Patrick Macklem, “Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution” (1992) 141:1 U Pa L Rev 3 at 24 [Scott & Macklem]. 52 Wiles, supra note 42 at 41. 53 Ibid at 45. 16 Windsor Review of Legal and Social Issues Vol. 40 certainty due to their open ended and indeterminate nature.54 However, this argument has lacked force ever since the CESCR issued a series of General Comments interpreting the content of many socio-economic rights and adopting a twin-track approach of identifying a “minimum core” to each socio-economic right and requiring “maximization” whereby states must take all reasonable steps to realize the standard set of rights.55 Another classic argument reviewed by Wiles is that cases involving socio-economic rights are too complex for judges to analyze adequately, as the social and economic issues they raise tend to be embedded in a complex web of causes and effects.56 However, this argument too is unsustainable, given that judges are often called on in their regular duties to examine complex webs of cause and effect. Fortunately, despite these and other real challenges of socio- 2019 CanLIIDocs 3714 economic human rights, other academics and practitioners have proposed strategies for their effective implementation and enforcement.
54 Ibid at 50–52; see e.g. Michael J Dennis & David P Stewart, “Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?” (2004) 98:3 Am J Intl L 462 at 473 (suggesting that many States ignore socio-economic rights because they are “imprecise [and] unenforceable”). 55 Wiles, supra note 42 at 51. See ECOSOC, Comm on Econ, Soc & Cultural Rts, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights: General Comment 12: The Right to Adequate Food, 19, 6 UN Doc E/C.12/1999/5 (May 12, 1999) (giving examples where a right to adequate food would have been violated, including: “repeal or suspension of legislation necessary for the continued enjoyment of the right to food; denial of access to food to particular individuals or groups, whether the discrimination is based on legislation or is pro-active; [and] the prevention of access to humanitarian food aid in internal conflicts or other emergency situations”). 56 Wiles, supra note 42 at 50–51; see also Scott & Macklem, supra note 51 at 23–24 (on the popular argument that judges lack the skills, education, training, and procedure to adjudicate socio-economic cases, especially given that the adjudication of social rights touches on the complex intersection of issues involving institutional design, policy choice, and contested political aspirations). Vol. 40 Windsor Review of Legal and Social Issues 17
b. Surmounting the Challenges to Applying Economic, Social, and Cultural Rights
The continuing place of socio-economic rights in the human rights discourse demonstrates their persistent appeal. This section considers two possible responses for how socio-economic rights could best be enforced as legal entitlements, despite their challenges. The first was developed by Kenneth Roth, from an activist’s perspective of civil society, and the second by Cass Sunstein, from an academic’s perspective of the judiciary. In a seminal article, Roth argues that economic, social, and cultural rights can be defended by organizations focussed on a naming-and-shaming methodology.57 However, to be effective in their struggle for socio-economic 2019 CanLIIDocs 3714 human rights, such organizations must follow the methodology that gives them their comparative advantage in defending civil and political rights: naming the violation, violator, and remedy with targeted specificity.58 According to Roth, this methodology is a question of appropriate framing.59 To be effective, the proposed characterization must offer a compelling account that a particular state of affairs constitutes a violation of human rights standards, that a particular violator is principally or significantly responsible, and that there is a wide consensus on an accepted remedy for the violation.60 In the realm of civil and political rights, this identification is generally easily done because the three criteria normally overlap. However, in the context of socio- economic rights, these three elements are more independent, leading to greater difficulty in leveraging the naming-and-shaming methodology. Roth notes that
57 Roth, supra note 42. 58 See also Leonard S Rubenstein, “How International Human Rights Organizations Can Advance Economic, Social, and Cultural Rights: A Response to Kenneth Roth” (2004) 26:4 Hum Rts Q 845 at 845 (on other strategies international human rights organizations can employ, such as lobbying to influence the design of service systems and advocating for the resources essential to fulfill economic, social, and cultural rights, as well as linking monitoring activities to specific State obligations, rather than restricting monitoring to State conduct that is arbitrary or discriminatory). 59 Roth, supra note 42 at 67. 60 Ibid at 67–68. 18 Windsor Review of Legal and Social Issues Vol. 40 where there is arbitrary or discriminatory conduct on the part of the government in the distribution of resources, the use of this methodology is made easier because the three preconditions more explicitly overlap. Thus, Roth maintains that there is room to defend socio-economic human rights through the naming-and-shaming methodology. This strategy of appropriately framing violations of socio-economic human rights can address many of the critiques raised against them, including problems surrounding the use of State resources, implementation, and their justiciability. In contrast, Sunstein considers the question with a focus on institutions rather than advocacy. He proposes a judicial solution to the challenges of implementing socio-economic human rights based on an application of administrative law principles. In his discussion, Sunstein observes that the 2019 CanLIIDocs 3714 structure of socio-economic human rights normally takes the following form:
1. Everyone has the right to the relevant good. 2. The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.61
The result of this structure is the difficulty of socio-economic human rights in finding an approach that avoids two equally unappealing courses: the creation of an absolute duty on governments to ensure protection for everyone whose right is imperiled or the conclusion of the complete non-justiciability of such rights.62 To resolve this difficulty, Sunstein offers Government of the Republic of South Africa & Others v Grootboom & Others (“Grootboom”), heard by the Constitutional Court of South Africa, as a case study in effective judicial implementation of socio-economic human rights.63 According to Sunstein, Grootboom provides a distinctive contribution to the debate on socio-economic human rights because it illustrates the manner in which these rights can be adjudicated while respecting the democratic process and the finite quality of
61 Sunstein, supra note 42 at 125. 62 Ibid at 130. 63 [2000] ZACC 19; 2001 (1) SA 46. Vol. 40 Windsor Review of Legal and Social Issues 19 public resources, as well as requiring States to give special attention to those whose minimal socio-economic needs are not being met.64 Sunstein argues that the Court in Grootboom effectively resolved the problem of judicial legitimacy in enforcing socio-economic rights by implementing what amounts to an administrative standard of judicial review: a requirement of reasoned judgment combined with reasonable priority-setting.65 As in a typical administrative law case, the Grootboom decision imposed a burden of explanation on the South African government for its decisions on resource allocation. The government must explain why it adopted a particular program and why it chose not to adopt a different program. If the resources have been allocated in a rational way, then the government has acted lawfully. This framework is valuable for courts because it prevents arbitrariness while 2019 CanLIIDocs 3714 acknowledging the democratic legitimacy of the executive and legislative branches, as well as the finite nature of state resources. Grootboom, thus, illustrates that the challenges surrounding the realization of socio-economic human rights are not insurmountable. Moreover, as we shall see in greater detail in Part 6, together, Roth and Sunstein’s analyses offer a valuable approach for understanding how to protect the right to food in the Gambella and elsewhere.
V. A CRITIQUE OF TWO PROPOSED RESPONSES TO LSLAS
Due in part to the difficulties associated with enforcing socio-economic human rights, the international community has turned to other means to respond to the potential risks of LSLAs. Codes of Conduct and titling schemes are two such responses, both premised on the idea that large-scale land deals offer a significant opportunity for rural development that must be seized. These proposals attempt to leverage the opportunities represented by land investments while mitigating some of the costs. However, both Codes of Conduct and titling
64 Sunstein, supra note 42 at 123. 65 Sunstein, supra note 42 at 130. 20 Windsor Review of Legal and Social Issues Vol. 40 schemes are inappropriate solutions, because they fail to engage directly with the unjust framework underlying the land deals.
a. Codes of Conduct
Codes of Conduct promise a means to capitalize on LSLAs while promoting the responsible conduct of investors through a set of general principles, thereby turning the investments into ethical, win-win opportunities for the resource rich host country and the investors, rather than reason for alarm. As put by the International Food Policy Research Institute, Codes of Conduct make “virtue out of necessity”.66 Agencies such as the Food and Agricultural Organization of the United Nations (“FAO”), the International Fund for Agricultural 2019 CanLIIDocs 3714 Development (“IFAD”), the United Nations Conference on Trade and Development (“UNCTAD”), and the World Bank promote the responsible development of land investment deals through projects such as the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the context of National Food Security (“VGGT”) and the Principles for Responsible Agricultural Investment (“CFS-RAI Principles”). Likewise, the International Institute for the Unification of Private Law (“UNIDROIT”) is currently developing, in collaboration with the FAO and IFAD, a Legal Guide on Agricultural Land Investment Contracts to operationalize the VGGT and CFS-RAI Principles and provide guidance on incorporating safeguards into agricultural land investment contracts. Nevertheless, the major assumptions underlying the arguments for developing Codes of Conduct belie their virtue. First, proponents of Codes of Conduct insist on the existence of vast reserves of untapped land, revealed by new technology in satellite imaging. However, although new techniques in satellite imaging have suggested the existence of vast tracts of unused land, these techniques are unable to picture historical land based social relations or
66 Joachim von Braun & Ruth Meinzen-Dick, “‘Land Grabbing’ by Foreign Investors in Developing Countries: Risks and Opportunities” (IFPRI Policy Brief 13, April 2009), online (pdf):
67 Borras & Franco, supra note 15 at 9. 68 Olivier De Schutter, “How Not to Think of Land-Grabbing: Three Critiques of Large-Scale Investments in Farmland” (2011) 38:2 J Peasant Stud 249 [De Schutter, “Three Critiques”]. 69 Borras & Franco, supra note 15. This would include well-defined land rights, an emphasis on a private property rights system, clear identification of available land, straightforward mechanisms for the transfer of land rights, improved investment climates through rule of law and contract security, as well as decentralized (community-based) negotiation. 70 Borras & Franco, supra note 15 at 11. 71 Ibid. 22 Windsor Review of Legal and Social Issues Vol. 40 investments in farmland and regulate their impact requires a wide range of regulatory measures. These include addressing corruption, mapping the land available for developers, strengthening security of tenure, developing the legal framework necessary to ensure that social and environment standards are present in legislation and adequately monitored and enforced, establishing appropriate consultation processes with local communities, instituting effective screening of investors, analysing the economic and technical viability of the project, and establishing effective and legitimate dispute-resolution mechanisms. Target countries do not necessarily have the capacity to implement these measures and, therefore, cannot be assumed able to tame the risks associated with LSLAs as hoped by Codes of Conduct. For example, the situation in the Gambella does not reflect any of the 2019 CanLIIDocs 3714 principles set out in these codes. Existing rights to land are neither respected nor recognized, Levels of transparency are low. Monitoring provisions are weak. No mechanisms exist to ensure accountability and consultation with impacted communities is non-existent. This state of affairs is predominantly due to Ethiopia’s system of state-owned land tenure, lack of widespread formal rights recognition, lack of respect for traditional systems of land tenure, and lack of communal land recognition.72 These are problems that Codes of Conduct do little to solve. Codes of Conduct are thus an inadequate response to the human rights violations associated with LSLAs because they take as their starting point the need to discipline the inevitable process of LSLAs. Instead, the harms caused by land deals require a rights-based approach that seeks to understand and address the suffering and harm caused by LSLAs.
b. Land Titling
Another widely proposed method to address the risks associated with LSLAs is to promote formal land titling as a means of ensuring security of tenure and efficient use of land. For example, the World Bank has engaged in the
72 Horne, supra note 19 at 48. Vol. 40 Windsor Review of Legal and Social Issues 23 widespread promotion of land markets and the abandonment of communal tenure.73 Two arguments for land titling are commonly espoused by proponents such as the World Bank. The first argument is that the establishment of a market for land rights will facilitate land reallocation towards the more efficient land- users, in other words those who can use it most productively, because this legal recognition facilitates and secures efficient transactions related to land, thereby benefiting poor farmers by providing an exit route from agriculture where farming is not profitable enough. The second argument is that formal titling schemes will benefit poor farmers by providing access to credit. Both these arguments suggest that formal land titling is an essential element in addressing rural poverty.74 In Ethiopia, 6.3 million households in four regions, Oromia, Amhara, 2019 CanLIIDocs 3714 Tigray, and SNNPR, have had their land registered. Land certification is also expected to begin in at least one other region, Benishangul-Gumuz, but there does not seem to be any evidence of large-scale effort at land certification in other regions. Unfortunately, systems of traditional land tenure, including lands that are used for pastoralism, shifting cultivation, or for communal purposes are not recognized by government authorities for titling.75 Like Codes of Conducts, land titling has also been criticized as a response to LSLAs. This is because titling schemes have historically been associated with capture by local elites and unjust counter-agrarian land reform.76 Historically this has happened where land sales have re-concentrated land in the hands of those with access to capital and the ability to purchase land, rather than those who actually use the land, those who need land the most, or those who will use it most efficiently.77 Similarly, if the process of land titling is based on formal ownership rather than on land users’ rights, it can confirm inequality in
73 See e.g. Russell Muir & Xiaofang Shen, “Land Markets: Promoting the Private Sector by Improving Access to Land. Viewpoint: Public Policy for the Private Sector” (1 October 2005), online: The World Bank
VI. A PROPOSAL FOR AN ALTERNATIVE STRATEGY
To protect the right to food of marginalised communities in danger of displacement and dispossession, States should implement legislation to protect against LSLAs by increasing the security of tenure of land holders without privatizing land rights. This could be achieved through the implementation of anti-eviction laws and the creation of land use registries according to effective control. Doing so would emphasize promoting land sovereignty and avoiding the dispossession and displacement that risk violating the right to food. The frameworks constructed by Roth and Sunstein offer a means to legitimately pressure States into adopting an alternative policy to the continued negotiation of large-scale land transfers. This strategy combines advocacy by civil society and enforcement by the judiciary in a two-step process. First, human rights advocates can leverage the methodology proposed by Roth to pressure the government by naming the violation, the violator, and the
78 Borras & Franco, supra note 15 at 32. Vol. 40 Windsor Review of Legal and Social Issues 25 remedy. In the Gambella, the violation of the right to food can be characterized as the transfer of land without regard to the rights of the Anuak using the land. As the CESCR noted, a State’s obligation to respect the right to food entails a duty not to undermine existing access to resources.79 Where the transfer arbitrarily impacts land traditionally used by minority groups, as is the case in the Gambella, the violation can further be characterized as discrimination against an ethnic group, the Anuak. The violator can be identified as the Ethiopian government for its complicity in negotiating land investment deals that put the right to food at risk. The remedy can be identified as an obligation incumbent on Ethiopia to draft legislation to increase security of tenure by focussing on the effective use and control of land by the Anuak, rather than on formal property rights. This could be done through the implementation of anti- 2019 CanLIIDocs 3714 eviction laws and registries of land use. In a second step, narrowly construing the violation as discrimination against an ethnic group would allow for the possibility of legitimate judicial enforcement along the lines proposed by Sunstein. This could be done by characterizing the land transfers as the distribution of resources by the government. This is particularly relevant in Ethiopia where all land is owned by the State.80 Moreover, the Ethiopian government’s rationale for negotiating the land deals is the claim that these investments are a way to re-distribute resources by bringing benefits such as foreign currency, infrastructure, on-farm wage employment, increased food production, and technology transfers. With this characterization in mind, courts could legitimately apply the framework used in Grootboom: a requirement of reasoned judgment combined with reasonable priority setting that considers the perspective of the most vulnerable. Given the extent of the risks to the right to food posed by LSLAs, there is a compelling argument to be made that allocating resources to LSLAs is unreasonable given the already precarious levels of food security in Ethiopia. This short example of an alternative strategy demonstrates that succumbing to the inevitability of
79 General Comment 12, supra note 5 at para 15. 80 The LSLAs remain long-term leases. 26 Windsor Review of Legal and Social Issues Vol. 40
LSLAs to the detriment of food security is unnecessary. There are strategies to protect the right to food.
VII. CONCLUSION
International human rights law protects the right to food. However, the recent worldwide growing trend in LSLAs puts this right at risk. In the Gambella region in Ethiopia, the government’s “villagization” program acutely illustrates the dangers posed by LSLAs. To ensure that Ethiopia realizes its obligations to respect, protect, and fulfill the right to food, the government should implement legislation that considers the existing uses of land and increases the security of tenure of land users. To pressure the government into implementing such 2019 CanLIIDocs 3714 legislation, human rights advocates can leverage the naming and shaming methodology proposed by Roth. To defend the legislation against government breaches, the judiciary can leverage the strategy offered by Sunstein’s interpretation of Grootboom. Thus, the internationally recognized right to food can be used as an effective legal framework to protect the food security needs of the Anuak in Ethiopia and vulnerable groups everywhere. 27 Windsor Review of Legal and Social Issues Vol. 40
THE MILKMAID’S TALE: VEGANISM, FEMINISM AN DYSTOPIAN FOOD FUTURES
Angela Lee*
I. INTRODUCTION
As feminists have noted, “the personal is political”.1 That oft-quoted slogan is certainly true in the realm of food, where the individual choices we make on a daily basis have significant environmental, social, and ethical implications in the aggregate. Unlike in the past, when food production was much more constrained
(geographically, economically, temporally, and otherwise), thereby limiting the 2019 CanLIIDocs 3714 scope of options available for consumption, eating meat and other animal products is now far from a necessity for most people living in wealthy countries to have a healthy, delicious, nutritionally-balanced diet. To choose what we eat—whether in the form of indulgence or abstention—is also to make inherent choices about ecological destruction, public health, global hunger, and animal welfare, whether intentionally or otherwise. Acknowledging the agency that accompanies our behaviours and choices imbues them with a much greater ethical significance. Thus, vegetarianism and veganism are much more than just dietary choices: they can also reflect social justice commitments and lifestyles. The practice of vegetarianism has a long history, especially in non- Western cultures.2 However, ethical vegetarianism and veganism have recently begun to gain momentum in the Western world. This is due in part to the increasingly difficult to ignore social and environmental consequences of
* PhD Candidate, University of Ottawa, Faculty of Law. The author thanks Heather McLeod- Kilmurray, Sabrina Tremblay-Huet, Angela P Harris, and Andrea Freeman for their helpful comments on earlier drafts.
1 Carol Hanisch, “The Personal is Political” (February 1969), online: Carol Hanisch
28 Windsor Review of Legal and Social Issues Vol. 40 industrial animal agriculture,3 as well as the growing visibility of farmed animal suffering.4 The burgeoning interest in vegetarianism and veganism sits somewhat paradoxically alongside alarming trends in global meat consumption.5 Perhaps as a result, the study of ethical dietary choices has also been flourishing. No longer relegated to a fringe movement, there are now entire academic volumes dedicated to vegetarianism and veganism, with internationally recognized writers, thinkers, and activists weighing in on both sides of the debate.6 In addition to its purely practical importance, it is clear that food—and flesh food in particular—plays a distinctive role in social identity formation.7 Critical perspectives on food have revealed that food and gender inform each other in multiple ways.8 Researchers have already illuminated the gendered 2019 CanLIIDocs 3714
3 World Society for the Protection of Animals, “What's on Your Plate? The Hidden Costs of Industrial Animal Agriculture in Canada” (2012), online: World Animal Protection Canada
Press, 2005); Jane Rachel Kaplan, ed, A Woman’s Conflict: The Special Relationship Between Women and Food (Englewood Cliffs, NJ: Prentice-Hall, Inc, 1980). 9 Luke (Lei) Zhu et al, “Macho Nachos: The Implicit Effect of Gendered Food Packaging on Preferences for Healthy and Unhealthy Foods” (2015) 46:4 Soc Psychology 182 at 184; Katherine J Parkin, Food Is Love: Advertising and Gender Roles in Modern America (Philadelphia: University of Pennsylvania Press, 2006) at 4. 10 Erik de Bakker & Hans Dagevos, “Reducing Meat Consumption in Today’s Consumer Society: Questioning the Citizen-Consumer Gap” (2012) 25:1 J Agricultural & Environmental Ethics 877 at 879. 11 Samuel Soret et al, “Climate Change Mitigation and Health Effects of Varied Dietary Patterns in Real-life Settings Throughout North America” (2014) 100:1 American J Clinical Nutrition 490S at 491S–92S. 12 Paul Rozin et al, “Is Meat Male? A Quantitative Multimethod Framework to Establish Metaphoric Relationships” (2012) 39:3 J Consumer Research 629 at 630–32; Amy Calvert, “You Are What You (M)eat: Explorations of Meat-Eating, Masculinity and Masquerade” (2014) 16:1 J Intl Women’s Studies 18 at 18–19. The connections between meat and masculinity not only relate to the consumption of meat, but also its procurement—for example, the association of men with hunting and women with gathering in the traditional hunter/gatherer dichotomy, see e.g. Linda R Owen, Distorting the Past: Gender and the Division of Labor in the European Upper Paleolithic (Tübingen, Germany: Kerns Verlag, 2005). 13 Speciesism can be defined as “a prejudice or attitude of bias in favor of the interests of members of one’s own species and against those of members of other species”: Peter Singer, Animal Liberation: The Definitive Classic of the Animal Movement (New York: HarperCollins Publishers, 2009) at 6. 14 See e.g. Christina Roylance, Andrew A Abeyta & Clay Routledge, “I Am Not an Animal but I Am a Sexist: Human Distinctiveness, Sexist Attitudes Towards Women, and Perceptions of Meaning in Life” (2016) 26:3 Feminism & Psychology 368. 30 Windsor Review of Legal and Social Issues Vol. 40 students from one Texas campus, Ashley Allcorn and Shirley Ogletree found that “sexist and traditional gender role attitudes positively correlated with pro meat eating attitudes/justifications while nontraditional, gender transcendent attitudes correlated negatively with pro meat eating attitudes.”15 Similarly, “gender transcendent attitudes were positively related to pro-animal attitudes while sexist/traditional gender attitudes related negatively to pro-animal attitudes.”16 It is not surprising, then, that demographic surveys reveal that the majority of vegetarians and vegans in the Western world are women,17 and women have also historically made up the majority of animal advocates (although they have not necessarily been the most visible).18 Scholars have engaged with questions concerning the relationship between vegetarianism or veganism and feminism for decades now, both 2019 CanLIIDocs 3714 normatively and descriptively, and I make no claim to offering an original contribution in terms of existing strands of vegan-feminist thought. However, recent technological developments are unsettling the existing ontological and ethical boundaries of animal products as food. These disruptions, in challenging previously established arguments and adhered-to tenets, raise a number of complex social, ethical, and legal questions. For example, does meat that is produced in a lab truly represent an ethical alternative to meat produced via conventional agricultural methods? Do the kinds of technological interventions that promise products like “animal-free milk” and “chickenless eggs” signify a harbinger of a more utopic food future for both humans and nonhuman animals?
15 Ashley Allcorn & Shirley Ogletree, “Linked Oppression: Connecting Animal and Gender Attitudes” (2018) 28:4 Feminism & Psychology 457 at 465. 16 Ibid. 17 See e.g. Statistic Brain Research Institute, “Vegetarian Statistics”, online: Statistic Brain Research Institute
If they do—or especially if they do not—what is and what should be the role of the law in mediating the development, production, marketing, and access to such products? Finally, where do these kinds of products fit within a vegan-feminist ethic? Alongside technological revolutions, the “food movement” has taken off in the Western world in recent years, with increasing attention being paid to the ways in which food can act as a proxy for all kinds of social and political causes, from animal welfare and workers’ rights to public health and environmental sustainability. Despite the growing significance and popularity of the food movement, it has also come under fire by those who have claimed that it is blind to the deeper structural obstacles faced by certain groups. As Alison Alkon and Julian Agyeman put it, “[t]he food movement narrative is largely created by, and 2019 CanLIIDocs 3714 resonates most deeply, with white and middle-class individuals.”19 Similar charges have been levied against vegetarianism and veganism, suggesting that the goals and priorities of those advocating for change within the food system do not always align. Accordingly, when it comes to “confront[ing] the complexities of oppression and privilege that are embedded in legacies of colonialism, whiteness, racism, patriarchy, and classism”20 and that endure in food production and consumption practices—as well as forms of resistance to food consumption and production practices—there is a great deal of challenging work still to be done. The question of the role of law in the equation is also complicated, both in terms of formal and informal regulatory processes. Certainly, substantive laws and policies can have direct and tangible effects on people’s food environments, 21 thereby establishing preconditions for failure or success when it comes to
19 Alison Hope Alkon & Julian Agyeman, “Introduction: The Food Movement as Polyculture” in Alison Hope Alkon & Julian Agyeman, eds, Cultivating Food Justice: Race, Class, and Sustainability (Cambridge, Mass: The MIT Press, 2011) 1 at 3 [Alkon & Agyeman, “Introduction: The Food Movement”]. 20 Jennifer Brady et al, “Filling Our Plate: A Spotlight on Feminist Food Studies” (2018) 5:1 Can Food Studies 1 at 1. 21 Food and Agriculture Organization of the United Nations, “Influencing Food Environments for Healthy Diets: Summary” (2016) at 24, online: Food and Agriculture Organization of the United Nations
Environment in Canada” (November 2013) at 5, online (pdf): Health Canada
II. THE TRADITIONAL VEGAN-FEMINIST POSITION
Some of the earliest scholarship and activism that drew parallels between the plight of animals and women can be traced back to the ecofeminist movement.23 Broadly speaking, ecofeminism is a political and philosophical movement that closely links the subordination of women with the domination of nature.24 It first took concrete form in the 1980s as an outgrowth of the environmental and women’s movements that were flourishing at the time. Ecofeminism has since become a diverse movement encompassing a range of different perspectives. In general, the common thread uniting ecofeminist perspectives is a “recognition that solutions to ecological problems must be tied to social and gender transformations.”25 To this end, ecofeminists are committed to exposing 2019 CanLIIDocs 3714 systemic and structural sources of discrimination as an underlying cause of gendered and other forms of oppression, including on the grounds of race, class, and species.26 When it comes to human-nonhuman animal relations more specifically, the “linked oppression thesis” holds that women and nonhuman animals are enmeshed within the same systems of inequalities within patriarchal cultures, since both groups are positioned as objects rather than as subjects.27 This objectification becomes especially apparent in the domain of flesh food, as Carol Adams compellingly demonstrates in her treatise The Sexual Politics of Meat.28 Given her thesis, Adams has forcefully advanced the claim that vegetarianism
23 See e.g. Greta Gaard, ed, Ecofeminism: Women, Animals, Nature (Philadelphia: Temple University Press, 1993); Carol J Adams & Josephine Donovan, eds, Animals and Women: Feminist Theoretical Explorations (Durham, NC: Duke University Press, 1995). 24 See Karen J Warren, “The Power and the Promise of Ecological Feminism” (1990) 12:2 Environmental Ethics 125; Maria Mies & Vandana Shiva, Ecofeminism (Halifax: Fernwood Publications, 1993) at 14. 25 Carolyn Sachs, “Reconsidering Diversity in Agriculture and Food Systems: An Ecofeminist Approach” (1992) 9:3 Agriculture & Human Values 4 at 6. 26 Heather McLeod-Kilmurray, “An Ecofeminist Legal Critique of Canadian Environmental Law: The Case Study of Genetically Modified Foods” (2009) 26:1 Windsor Rev Legal Soc Issues 129 at 136–37. 27 Jason Wyckoff, “Linking Sexism and Speciesism” (2014) 29:4 Hypatia 721 at 721. 28 Carol J Adams, The Sexual Politics of Meat: A Feminist-Vegetarian Critical Theory, 3rd ed (New York: Continuum, 2000) at 73. 34 Windsor Review of Legal and Social Issues Vol. 40 or veganism and feminist practice—ecofeminist practice in particular—are inextricably intertwined.29 Other prominent ecofeminists, like Josephine Donovan, Greta Gaard, Lori Gruen, and Marti Kheel have also made the case for vegan-feminism, using “the combination of sympathy and a reasoned analysis of cultural and political contexts” as a guide to action that is a hallmark of the ecofeminist ethic.30 Radical proponents of vegan-feminism argue that vegetarianism, in the form of abstention from flesh food alone, does not go far enough, since “[e]ven though the animals are alive, dairy products and eggs are not victimless foods.”31 Particularly in the context of the modern factory farm, there is a great deal of violence and suffering associated with dairy and egg production that cannot be disregarded or minimized solely on the grounds that it does not amount to 2019 CanLIIDocs 3714 outright death.32 Further, as Deane Curtin notes, “[s]ince the consumption of eggs and milk have in common that they exploit the reproductive capacities of the female, vegetarianism is not a gender neutral issue.”33 Adams “coined the term ‘feminized protein’ for eggs and dairy products,” since it is the reproductive capacity of living female non-humans that is manipulated for human consumption.34 Thus, abstention from all animal products is claimed to be a significant opportunity for protesting against interlocking oppressions. Refraining from consuming substances produced through control exerted over another female’s body is seen to be a way avoid being complicit in upholding
29 Carol J Adams, “Ecofeminism and the Eating of Animals” (1991) 6:1 Hypatia 125 at 125– 26. 30 Greta Gaard, “Vegetarian Ecofeminism: A Review Essay” (2002) 23:3 Frontiers 117 at 123. See also Christopher Cohoon, “Ecofeminist Food Ethics” in Paul B Thompson & David M Kaplan, eds, Encyclopedia of Food and Agricultural Ethics (New York: Springer, 2014) 521. 31 Carol J Adams, “Why Feminist-Vegan Now?” (2010) 20:3 Feminism & Psychology 302 at 305 [Adams, “Why Feminist-Vegan Now?”]. 32 For a survey of issues relating to milk production and consumption in particular, see Mathilde Cohen & Yoriko Otomo, eds, Making Milk: The Past, Present and Future of Our Primary Food (New York: Bloomsbury, 2017). 33 Deane Curtin, “Toward an Ecological Ethic of Care” (1991) 6:1 Hypatia 60 at 71 [Curtin]. 34 Adams, “Why Feminist-Vegan Now?”, supra note 31 at 305. Vol. 40 Windsor Review of Legal and Social Issues 35 the patriarchal systems of domination and supporting the broader “animal industrial complex”.35 However, feminists have by no means taken a unitary stance on this issue, and both the form and the content of the connection between ethical vegetarianism or veganism and feminism has been challenged. Perhaps most notably, in her 2000 book Animal, Vegetable, or Woman?, Kathryn Paxton George actively rejects vegetarian feminism, alleging that “moral vegetarianism is inconsistent with feminism and is, in fact, at odds with the central assertions of feminism.”36 George contends that arguments for ethical vegetarianism rely on a white, middle-class male health norm and that many “women, children, older persons, and those in nonindustrial or nonwesternized cultural settings”37 cannot healthily sustain a plant-based diet without the privileges of 2019 CanLIIDocs 3714 supplementation and regular, preventative medical care. Instead of moral vegetarianism, George prefers what she calls a “feminist aesthetic semivegetarianism”, in which “[d]epending on context, eating small amounts of meat is appropriate, but limited by the moral considerations prohibiting cruelty, violence, and waste.”38 George’s arguments have been strenuously refuted on several grounds,39 including the claim that she relies on a fundamental misapprehension of the feminist-vegan ethic, to which she has duly responded;
35 Richard Twine, “Revealing the ‘Animal-Industrial Complex’––A Concept & Method for Critical Animal Studies?” (2012) 10:1 J for Critical Animal Studies 12 at 12, online (pdf):
40 See Carol J Adams, “Comment on George’s ‘Should Feminists Be Vegetarians?’” (1995) 21:1 Signs 221; Josephine Donovan, “Comment on George’s ‘Should Feminists Be Vegetarians?’” (1995) 21:1 Signs 226; Greta Gaard & Lori Gruen, “Comment on George’s ‘Should Feminists Be Vegetarians?’” (1995) 21:1 Signs 230; Kathryn Paxton George, “Reply to Adams, Donovan, and Gaard and Gruen” (1995) 21:1 Signs 242; For a more recent critique, see Cathryn Bailey, “We Are What We Eat: Feminist Vegetarianism and the Reproduction of Racial Identity” (2007) 22:2 Hypatia 39 at 51–55. 41 Val Plumwood, “Integrating Ethical Frameworks for Animals, Humans, and Nature: A Critical Feminist Eco-Socialist Analysis” (2000) 5:2 Ethics & Environment 285 at 286 [Plumwood]. 42 Ibid at 287 [footnotes omitted]. 43 Ibid at 302. 44 Curtin, supra note 33 at 69. 45 Ibid at 70. Vol. 40 Windsor Review of Legal and Social Issues 37 invitational approach. Marti Kheel remarked that “[v]egetarianism, conceived as an ideal … may be viewed as an invitation; and invitations cannot always be honored and may be declined.”46 She continued on to explain that “[w]hile it is important to try to understand, and where appropriate, respect the practices of other cultures, this should not preclude a deeper analysis of the cultural associations that may underlie those practices, and in particular the cultural associations between masculine self-identity and meat eating.”47 Thus, the challenges of trying to understand “the meanings that attach to behaviors of other cultures” should not bar our attempts at grappling with them.48 As this necessarily concise overview aims to demonstrate, efforts to elucidate the relationship between vegetarian/vegan-feminism have been fraught and ongoing. At its most basic, the traditional position, as characterized by 2019 CanLIIDocs 3714 Adams, is that veganism is in many ways a feminist obligation, but as others have countered, there are notable problems with this supposition. More than twenty years later, the question of whether feminism mandates vegetarianism or veganism is still far from settled, and new scientific and technological developments are further complicating the landscape. It is to these developments that we now turn.
III. NEW SCIENTIFIC AND TECHNOLOGICAL DEVELOPMENTS
Beyond growing health consciousness and environmental awareness of farmed animal suffering, shifting attitudes towards vegetarianism and veganism have also been driven by the increasing viability of vegetarian and vegan diets, enabled in part by scientific and technological innovations in food and agriculture. As of late, there have been some especially remarkable advances in this area. The latest cadre of new and emerging scientific and technological developments promises to reduce or eliminate the death and suffering of living
46 Marti Kheel, “Vegetarianism and Ecofeminism: Toppling Patriarchy with a Fork” in Steve F Sapontzis, ed, Food For Thought: The Debate Over Eating Meat (Amherst, NY: Prometheus Books, 2004) 327 at 335 [Kheel]. 47 Ibid. 48 Ibid. 38 Windsor Review of Legal and Social Issues Vol. 40 bodies in the production of flesh food and other animal products. Falling under the umbrella of “cellular agriculture”,49 examples include IVM (also popularly referred to as “cultured meat”, “lab-grown meat”, or “clean meat”, amongst other names),50 “animal-free dairy products”,51 and “chickenless eggs”.52 These products, which are at various stages of research and development, go beyond their plant-based counterparts in that they replicate traditionally produced animal products at the cellular level. As such, they do not merely act as imitations of the animal products they seek to replace but are very much the “real thing”. IVM is derived from a tissue engineering process that involves growing muscle tissue using starter stem cells from live animals, which are put into a culture medium where they proliferate with the help of a bioreactor, eventually 2019 CanLIIDocs 3714 becoming an edible flesh food.53 Given the number of benefits to which it has laid claim, IVM has generated a great deal of attention and enthusiasm from proponents across the ideological spectrum. Perhaps most obviously, IVM offers clear advantages to factory farming because, in theory, it “requires no animal
49 Cellular agriculture can be defined as a method of food production that turns on culturing cells or proteins directly, rather than harvesting them from animals. See Carolyn S Mattick, “Cellular Agriculture: The Coming Revolution in Food Production” (2018) 74:1 Bull Atomic Scientists 32; Valentin Waschulin & Liz Specht, “Cellular Agriculture: An Extension of Common Production Methods for Food” (2018), online (pdf):
54 Patrick D Hopkins & Austin Dacey, “Vegetarian Meat: Could Technology Save Animals and Satisfy Meat Eaters?” (2008) Agricultural & Environmental Ethics 579 at 582 [Hopkins & Dacey]. The qualification of “in theory” is necessary because one of the common growth mediums used to produce IVM is derived from calves or fetal bovine serum: see e.g. Oron Catts & Ionat Zurr, “Disembodied Livestock: The Promise of a Semi-Living Utopia” (2013) 19:1 Parallax 101 at 107. 55 Paul Shapiro, Clean Meat: How Growing Meat Without Animals Will Revolutionize Dinner and the World (Toronto: Gallery Books, 2018). 56 See e.g. Tasmin Dilworth & Andrew McGregor, “Moral Steaks? Ethical Discourses of In Vitro Meat in Academia and Australia” (2015) 28:1 J Agricultural & Environmental Ethics 85 [Dilworth & McGregor]; See also Zuhaib Fayaz Bhat, Sunil Kumar & Hina Fayaz, “In Vitro Meat Production: Challenges and Benefits over Conventional Meat Production” (2015) 14:2 J Integrative Agriculture 241. 57 Hanna L Tuomisto & M Joost Teixeira de Mattos, “Environmental Impacts of Cultured Meat Production” (2011) 45:14 Environmental Science & Technology 6117 at 6117. 58 Ibid. 40 Windsor Review of Legal and Social Issues Vol. 40 land, water and energy than conventional meat production.”59 The company concludes, unequivocally, that its goal is “Better Meat, Better World.”60 In the same vein, Perfect Day Foods, which is developing an array of animal-free dairy products using yeast, fermentation, and a process similar to craft brewing, proclaims that their contribution is “Dairy Reinvented: Sustainable. Kind. Delicious.”61 Clara Foods, the company working towards creating the “world’s first animal-free egg white,” boasts that “[w]e’re bringing an egg white to the table that is produced completely animal-free, uses less land and water inputs, while matching the taste, nutritional value, and unique culinary properties of hen-borne egg whites.”62 The rallying cry that such animal-free products are ethical, sustainable, and equivalent to their animal-based counterparts is evident when it comes to all of these innovations. 2019 CanLIIDocs 3714 Sophisticated plant-based alternatives to meat, milk, and cheese are also experiencing a surge in popularity.63 Market research indicates that this category of products is projected to experience monumental growth over the next few years.64 Consequently, the demand for plant-based protein from soy, pulses, and
59 Farrah Plummer, “The Future of Meat is Fake––Grown in a Laboratory from Animal Cells”, The New Daily (5 May 2018), online:
65 European Commission, “Commission Seeks Expert Views on Plant Proteins” (13 March 2018), online: European Commission
69 Angela Lee, “An Ecofeminist Perspective on New Food Technologies” (February 2018) 5:1 Can J Food Studies 63 at 67, online (pdf):
IV. SCIENCE AND TECHNOLOGY: THE MEDICINE OR THE MALADY?
While “animal-free milk” and “chickenless eggs” might seemingly offer a “win- win” way of consuming animal products without the associated environmental, social, and ethical side effects, the realities of how technologies play out are rarely that simple, especially in domains as multi-faceted as food. The biases embedded in the social, economic, and political structures underlying our food systems are not necessarily addressed—either adequately, or at all—by 2019 CanLIIDocs 3714 technological solutions, which may instead serve to further entrench existing inequities. As Vandana Shiva has argued, the Western “development” paradigm generates economic wealth for the developers at the expense of nature, women, and other marginalized groups, who are left to bear the hidden and unaccounted for costs.73 Although food innovations are ostensibly spurred by a panoply of environmental, social, and ethical concerns, they are also being driven by less laudable incentives. In Canada, the rhetoric of “efficiency”, “productivity”, and “competitiveness”, echoed in numerous governmental policies and initiatives, seem to suggest that science and technology are seen as lynchpins in improving both the environmental and economic performance of Canada’s agri-food system. However, optimistic reliance on technology should be regarded with some degree of suspicion, especially given concerns that have already been
72 See e.g. Angela Lee, “The Stakes in Steak: Examining Barriers to and Opportunities for Alternatives to Animal Products in Canada” (2018) 41:1 Dal LJ 219 at 241–46 [Lee]. 73 See e.g. Vandana Shiva, Staying Alive: Women, Ecology and Development (London: Zed Books, 1989); See also Vandana Shiva, The Violence of the Green Revolution: Third World Agriculture, Ecology and Politics (London: Zed Books, 1993); See also Vandana Shiva, Who Really Feeds the World?: The Failures of Agribusiness and the Promise of Agroecology (Berkeley, CA: North Atlantic Books, 2016). 44 Windsor Review of Legal and Social Issues Vol. 40 raised about the regulatory process when it comes to food innovations.74 Tracing the history of Canadian biotechnology policy, Elisabeth Abergel and Katherine Barrett have contended that Canada’s economic interests in the strong uptake of biotechnology have influenced the development of a national biotechnology policy and regulatory system that is overly permissive and favourable to the industry.75 Given the social, political, economic, and ethical contexts that food occupies, technical evaluations of new food technologies are conspicuously incomplete, and require a more nuanced consideration of their systemic implications. The breadth and depth of harms associated with current modes of industrial agriculture are plainly deleterious, but it is not inevitable that agricultural production will remain unsustainable.76 Agricultural systems that 2019 CanLIIDocs 3714 “are based on relatively small, profitable farms that use fewer off-farm inputs, integrate animal and plant production where appropriate, maintain a higher biotic diversity, emphasize technologies that are appropriate to the scale of production, and make the transition to renewable forms of energy” have been recommended as one way of producing better environmental, social, and ethical outcomes.77 The study and practice of agroecology, which takes a more holistic, ecological approach to the design and management of agricultural production systems,78 merits further attention at the institutional level if we are serious about
74 Peter Andrée, “The Biopolitics of Genetically Modified Organisms in Canada” (2002) 37:3 J Can Studies 162 at 163; Martin Phillipson, “Are Genetically Modified Crops in Canada Under- Regulated?” (2008) 18:2 J Envtl L & Prac at 195–96. 75 Elisabeth Abergel & Katherine Barrett, “Putting the Cart Before the Horse: A Review of Biotechnology Policy in Canada” (2002) 37:3 J Can Studies 135 at 136. 76 Miguel A Altieri, Agroecology: The Science of Sustainable Agriculture, 2nd ed (Boulder, CO: Westview Press, 1995) at ch 18; C Clare Hinrichs & Thomas A Lyson, eds, Remaking the North American Food System: Strategies for Sustainability (Lincoln, Neb: University of Nebraska Press, 2007) at 15–16. 77 Leo Horrigan, Robert S Lawrence & Polly Walker, “How Sustainable Agriculture Can Address the Environmental and Human Health Harms of Industrial Agriculture” (2002) 110:5 Environmental Health Perspectives 445 at 446; Tony Weis, The Global Food Economy: The Battle for the Future of Farming (New York: Zed Books, 2007). 78 Food and Agriculture Organization of the United Nations, “The 10 Elements of Agroecology: Guiding the Transition to Sustainable Food and Agricultural Systems” at 2, online (pdf): Food and Agriculture Organization of the United Nations Vol. 40 Windsor Review of Legal and Social Issues 45 transitioning toward more just and sustainable food systems. As the Food and Agriculture Organization of the United Nations notes, “[t]o harness the multiple sustainability benefits that arise from agroecological approaches, an enabling environment is required, including adapted policies, public investments, institutions and research priorities.”79 It is insufficient to keep the enabling legal, fiscal, and epistemological frameworks intact and rely exclusively on science and technology to try to repair the resulting problems ex post facto. Although advocates along various points of the ideological spectrum laud “clean meat” and other similar products for their ability to provide abundant quantities of meat while neatly excising the ethical and environmental consequences of its production, it would be naïve to assume that the outcome will be that straightforward. History is marked with numerous examples of 2019 CanLIIDocs 3714 scientific and technological developments that were accompanied by a host of ancillary costs, many of which were under-considered or undervalued at the outset.80 The checkered past of industrial agriculture alone reveals that the application of science and technology to the domain of food and agriculture has been contentious (e.g. continuing debates about the relative costs and benefits of genetically modified organisms).81 Additionally, even though products like IVM might mark a retreat from the literal conceptualization of animals, they do not address the conceptual commoditization of animals or the parts of them that we extract for our own use. Rather, by divorcing “meat” from “animal”, IVM and other such products may serve to perpetuate the role of animals as “absent referents”. Carol Adams
82 Adams, “Why Feminist-Vegan Now?”, supra note 31 at 303 [emphasis in original]. 83 Hopkins & Dacey, supra note 54 at 594. 84 Dilworth & McGregor, supra note 56 at 95. 85 Julia Twigg, “Vegetarianism and the Meanings of Meat” in Anne Murcott, ed, The Sociology of Food and Eating: Essays on the Sociological Significance of Food (Aldershot, UK: Gower, 1983) 18 at 21–27. 86 Plumwood, supra note 41 at 296. Vol. 40 Windsor Review of Legal and Social Issues 47 to source animal products are central” to developing an animal-rights-based approach to food,87 a feminist examination seeks to look beyond the effects of such developments on animal rights and welfare alone. One potential outcome of a shift towards technologically produced alternatives to animal products, like “clean milk”, is that “women’s traditional role in caring for cows and processing milk falls into the hands of men and machines.”88 The distributive consequences generated by different paths to sustainable food futures means that we cannot limit our narratives to the plight of the cow—we must also consider the milkmaid’s tale. Moreover, “[v]eganism does not necessarily minimize ecological costs and can be in conflict in some contexts with ecological eating.”89 There are negative impacts associated with the rapid expansion of certain crops that may 2019 CanLIIDocs 3714 not be immediately obvious. The risk of such negative impacts is especially high when decisions are motivated primarily by short-term economic considerations, corporate and political interests, and consumer tastes and trends in the Western world. As such, “[v]egan approaches to food that rely implicitly upon the global marketplace are thus in conflict with ecological approaches that stress the importance of ecological accountability, and of the local.”90 For example, the skyrocketing popularity of almond milk (and other plant-based milk alternatives) has generated concerns about the relative environmental impact of its production, especially in terms of water use.91
87 Josh Milburn, “Death-Free Dairy? The Ethics of Clean Milk” (2018) 31:2 J Agricultural & Environmental Ethics 261 at 263. 88 Shiva, Stolen Harvest, supra note 81 at 60. 89 Plumwood, supra note 41 at 304. 90 Ibid at 306. 91 Tom Philpott, “Your Almond Habit Is Sucking California Dry” (14 July 2014), online: Mother Jones
Similarly, the expansion of soybean plantations has been linked to biodiversity loss, greenhouse gas emissions associated with deforestation, increased use of pesticides and other agrochemicals, and the displacement of subsistence farmers and smallholders.92 Currently, a majority of the world’s soy is grown to feed livestock, and the scale of environmental degradation associated with mono-cropping soy cannot reasonably be attributed to plant-based diets. However, it is still important to acknowledge that soy is an important component of many plant-based alternatives to animal products, and the footprint of soy- based plant protein is not necessarily commensurate with that of animal-based protein. The secondary advantages and disadvantages of shifting towards different production systems must be considered, as the appropriate use of agricultural land by animals can offer environmental, economic, and social 2019 CanLIIDocs 3714 benefits when managed responsibly.93 Environmental and economic resources are not the only kinds of inputs on which growing and producing food depends. Social capital and labour, too, are critical components of a successful agri-food system. Women, in particular, play a significant role in global food security and agricultural production.94 To this end, women’s empowerment, and greater gender equality, has been proposed as an important tool to combat hunger and food insecurity.95 On
92 World Wide Fund for Nature, “The Growth of Soy: Impacts and Solutions” (2014) at 4–5, 34–35, 64–65, online (pdf): World Wide Fund for Nature
96 FAO of UN, supra note 94 at 5. 97 International Labour Organization, ILOSTAT database, “Employment in Agriculture, Female (% of Female Employment) (Modeled ILO Estimate)” (last modified September 2018), online: The World Bank
Unequal access to land, resources, and other means of agricultural production is also an important locus of feminist engagement when it comes to food, and these kinds of questions are applicable to the area of new food innovations. For example, who would produce the kinds of foods enabled by cellular agriculture, and for whom? Public perceptions of, and reactions to, IVM have not been overwhelmingly positive,105 suggesting that it is not necessarily a demand-driven innovation. If consumers are not willing to take up IVM as a viable alternative to conventionally produced flesh food, then its development is moot, and efforts toward making it a commercial reality may simply be serving to draw time, attention, and resources away from more worthwhile options for promoting sustainable food production and consumption practices. Though science and technology are often perceived to be neutral and 2019 CanLIIDocs 3714 objective, feminist scholarship has highlighted that current scientific research system “was designed by and for men, and therefore it is men who have established its operations, priorities, standards, and objectives. Men have overwhelmingly made the decisions that determine which equations are solved and which hypotheses are tested.”106 An androcentric bias can also be seen in the processes of a male dominated research agenda, as the current system emphasizes “disciplinary research over interdisciplinary investigations; reductionist approaches over synthetic ones; natural sciences over social and behavioral sciences; individuality over collaboration.”107 The fact that many of the scientists, investors, and lobbyists who are at the vanguard of cellular agriculture are men may be more than coincidental. This is not to say that a less male influenced system would necessarily be better; it merely points out that it would be different, and that these differences are important to consider. The promissory potentials of innovative new technologies often obscure the partial ways in which they are developed, designed, and deployed. The
105 See e.g. Linnea I Laestadius, “Public Perceptions of the Ethics of In-vitro Meat: Determining an Appropriate Course of Action” (2015) 28:5 J Agricultural & Environmental Ethics 991 at 994. 106 Daniel Sarewitz, Frontiers of Illusion: Science, Technology, and the Politics of Progress (Philadelphia: Temple University Press, 1996) at 43 [Sarewitz]; See also Sandra Harding, The Science Question in Feminism (Ithaca: Cornell University Press, 1986). 107 Sarewitz, supra note 106 at 46. Vol. 40 Windsor Review of Legal and Social Issues 51 rhetoric that is used to justify agricultural and biotechnological research and development is couched in a specific cultural, political, and legal context, where animals are seen as property, food is seen as a commodity, technology is seen as vital to economic growth, and the consumption of meat and other animal products is entirely normalized and accepted as a given. As Harvey Neo and Jody Emel observe, “[t]he single-mindedness of the group of disciplines that make up the animal research enterprise has shaped the pathway leading us to this place where livestock production is problematic in nearly every aspect except for productivity.”108 Indeed, the process of industrial livestock production and the commoditization of nonhuman animals that comes along with it would not have been possible without adopting technologies and the underlying ideologies that act as enabling frameworks.109 Even while they pose as a 2019 CanLIIDocs 3714 solution, we cannot forget that technologies have significantly contributed to, and perpetuated, the institutionalized suffering of billions of animals that have been, are, and will be farmed for food. The visibly gendered nature of food consumption patterns is also a major feminist concern, especially when it comes to animal products.110 In low-income countries, women are often disadvantaged when it comes to the distribution of food within a household, as men and boys tend to receive a disproportionate share of nutrient-dense foods like animal products.111 It remains to be seen whether women’s empowerment and greater gender equality would lead to any discernible effect in consumption patterns associated with animal products. Nevertheless, the “gatekeeper” role that women commonly play when it comes to food in the home may impact and determine the quantity of animal products
108 Harvey Neo & Jody Emel, Geographies of Meat: Politics, Economy and Culture (New York: Routledge, 2017) at 41. 109 Heather McLeod-Kilmurray, “Commoditizing Nonhuman Animals and Their Consumers: Industrial Livestock Production, Animal Welfare, and Ecological Justice” (2012) 32:1 Bull Science, Technology & Society 71 at 73. 110 Counihan, “Introduction”, supra note 7; Carole Counihan, “Gendering Food” in Jeffrey M Pilcher, ed, The Oxford Handbook of Food History (Oxford: Oxford University Press, 2012) 99. 111 Intl Food Policy Research Institute, supra note 94 at 3. 52 Windsor Review of Legal and Social Issues Vol. 40 that are consumed by the family household.112 Given the tepid public perception of products like IVM, consumer acceptance may turn on women’s opinions about whether or not such products represent an appropriate alternative to conventionally produced animal products. Thus, the uncertainties and indeterminacies surrounding the newest wave of food innovations present unique opportunities for feminists and allies to resist multiple structures of domination and exert “democratic control over the food system to ensure sustainable and safe production and equitable distribution and access to food.”113 Regardless of their intent, technologies are often resource and energy- intensive, and can contribute to increasing corporatization and concentration of the global food supply, with serious ramifications for distributive justice and ecological resilience. By relying on technology, industry, and the corporations 2019 CanLIIDocs 3714 that control them to provide us with sustenance, we risk creating a dangerous system of dependence in which it becomes more challenging to cultivate a truly just, sustainable, and ethical food system. Such an outcome portends an increasingly dystopian food future, as opposed to the utopic scenarios painted by industries and organizations with vested interested in promoting untrammeled technological expansion.
V. AN INCLUSIVE, INTERSECTIONAL REIMAGINING OF THE TRADITIONAL VEGAN-FEMINIST POSITION
Although a blanket prohibition on the consumption of all animal products seems like a straightforward way to address the various problems associated with industrial meat, dairy, and egg production methods, moral prescriptivism is laden with problems of its own. One such problem is that a prohibitory approach to diet falls short of critically engaging with the colonial legacies and capitalist practices that have shaped the contemporary food system. Food practices are simultaneously deeply personal and reflective of broader social and cultural norms. There are strong associations that can be made between one’s eating
112 Wm Alex McIntosh & Mary Zey, “Women as Gatekeepers of Food Consumption: A Sociological Critique” (1989) 3:4 Food & Foodways 317 at 319–22. 113 Shiva, Stolen Harvest, supra note 81 at 117. Vol. 40 Windsor Review of Legal and Social Issues 53 habits and other aspects of one’s identity, from health to ethics—as the familiar adage goes, “you are what you eat”. For women, vegetarianism can be “a political statement: a rejection of patriarchal power and values, an expression of feminism, and a claiming of female power over self and nature.”114 At the same time, meat eating can also be its own form of feminist rebellion. It is important to be sensitive to the diverse experiences and realities of differently positioned people in order to avoid perpetuating race, class, and gender-based forms of harm when initiating conversations about feminism and the consumption of animal products.115 Drawing from other conceptual frameworks can help us break free from a “perpetual state of status quo,”116 though caution is warranted so as not to inadvertently appropriate the voices of other groups or universalize their 2019 CanLIIDocs 3714 positions. Writing from a Mi’kmaq Aboriginal perspective, Margaret Robinson notes that constructing an Aboriginal veganism faces two significant barriers: “the association of veganism with whiteness”, and “the portrayal of veganism as a product of class privilege.”117 Vegetarianism and especially veganism have been judged to be largely elitist, white movements driven by and intended for those who have the privilege to prioritize ethical-, health-, and environment- related considerations when making dietary choices. There have also been accusations that vegetarianism and veganism reflect settler-colonialist ideals.118 The traditional Mi’kmaq diet prominently featured flesh foods, and the use of animals as food is an important part of Mi’kmaq legends. Accordingly,
114 Counihan, “Food and Gender”, supra note 7 at 4. 115 J Douglas Rabb criticizes the thesis of Michael Allen Fox’s 1999 book, Deep Vegetarianism (Michael Allen Fox, Deep Vegetarianism (Philadelphia, Temple University Press, 1999) for “overcoming speciesism but, albeit unwittingly, perpetuating systemic racism”: J Douglas Rabb, “The Vegetarian Fox and Indigenous Philosophy: Speciesism, Racism, and Sexism” (2002) 24:3 Environmental Ethics 275 at 276 [Rabb]. 116 Lyne Létourneau, “The Regulation of Animal Biotechnology: At the Crossroads of Law & Ethics” in Edna Einsiedel & Frank Timmermans, eds, Crossing Over: Genomics in the Public Arena (Calgary: University of Calgary Press, 2005) 173 at 189. 117 Margaret Robinson, “Veganism and Mi’kmaq Legends” (2013) 33:1 Can J Native Studies 189 at 189–90 [Robinson, “Mi’kmaq Legends”]. 118 Krystalline Kraus, “The Indigenous Fight Against Colonial Veganism” (16 April 2014), online (blog): Rabble
Robinson observes that “[f]raming veganism as a uniformly White colonial practice requires depicting Indigenous people who refrain from eating animal products as cultural[ly] inauthentic.”119 Aside from the irony of such essentialist characterizations of veganism, it is clear that veganism can act as an expression of various different kinds of identity and values, and may be a legitimate choice made autonomously by marginalized individuals and groups. Despite the disparagements it has faced, veganism can be redeemed as “part of a larger resistance to violence and domination,”120 especially in a more inclusive, intersectional, and contextual form. Partly due to the influence of powerful industry lobby groups which represent the interests of corporate actors, the market (and the laws and policies enabling it) has been distorted such that animal products, especially in heavily processed forms, are often cheaper and 2019 CanLIIDocs 3714 more readily available than plant-based foods.121 The argument that a vegan diet is a luxury often relies on the fallacy that expensive and processed specialty products form the basis of a vegan diet. This line of reasoning conveniently “ignores the vegan or vegetarian food practices of some of the most impoverished peoples of the world.”122 When taking into account the true environmental and economic costs associated with animal products produced within the contemporary industrial system, it becomes apparent that veganism is not only a product of privilege but can also be a potent form of boycott.123 Given Canada’s history, it is imperative to recognize the enduring effects of colonialism on Canada’s Indigenous people, particularly in terms of food security. Currently, Indigenous people (especially in the North) are disproportionately affected by food insecurity—a fact that is well documented but poorly acted on.124 As Plains Cree legal scholar Darcy Lindberg notes, “[t]he
119 Margaret Robinson, “Animal Personhood in Mi’kmaq Perspective” (2014) 4:4 Societies 672 at 683 [Robinson, “Animal Personhood”]. 120 Kheel, supra note 46 at 334. 121 Lee, supra note 72 at 220–21. 122 Robinson, “Animal Personhood”, supra note 119. 123 Adams, “Why Feminist-Vegan Now”, supra note 31 at 306. 124 The Council of Canadian Academies, Aboriginal Food Security in Northern Canada: An Assessment of the State of Knowledge – Expert Panel on the State of Knowledge of Food Security in Northern Canada (2014) at vii, online (pdf): Food Secure Canada Vol. 40 Windsor Review of Legal and Social Issues 55 historical subjugation of Indigenous nations has deprived Indigenous societies of the sovereignty to apply methods faithful to their epistemologies on food raising and food sourcing. The roots of Indigenous food insecurity are sowed deep into Canadian sovereignty; food insecurity is not an Indigenous issue but a settler-colonial issue.”125 Colonial courts have recognized the right of Indigenous communities to feed themselves as part of their constitutionally protected Aboriginal rights, which protects traditional harvesting activities such as fishing, hunting, trapping, and gathering.126 The development of contemporary policies and strategies relating to food must continue to account for the deeply regrettable history from which they emerge. However, as is the case with law and the contexts in which law operates, cultures are not static; the environmental, social, and political conditions in 2019 CanLIIDocs 3714 which they develop do not hold true across time. Consequently, Robinson suggests that “[m]eat, as a symbol of patriarchy shared with colonizing forces, arguably binds us with white colonial culture to a greater degree than practices such as veganism, which, although overwhelmingly white itself, is far from hegemonic.”127 Plumwood also recognizes that “[n]ondominant cultures as well as dominant ones have obligations to maintain global ecological health and species diversity … and to adapt tradition to take account of new contexts in which animal lives may be much more beleagured [sic] than in the past.”128 Cultural authenticity is “not fixed in time and space, but is adaptable to our needs, to the needs of our animal siblings, and to the needs of the land itself.”129 At present, the needs of humans, nonhuman animals, and the Earth at large point towards a need to dramatically reduce the ecological, ethical, and human health
The personhood of animals, their self-determination, and our regret at their death, all show that choosing not to ask for their sacrifice is a legitimately Aboriginal option. Since the consumption of animals for food, clothing and shelter is no longer necessary, as vegan culture testifies, then the Mi’kmaq tradition, as manifested in our legends, suggests that hunting and killing our animal brothers is no longer authorized.130 2019 CanLIIDocs 3714 In terms of a feminist response to these interrelated injustices, the emphasis should not be on an individualized version of veganism that relies on “external constraints on behavior.”131 Veganism is not a form of heroism or martyrdom, a mantle to be taken up only by those made of moral stuff strong enough to resist the temptations of cheese and bacon. Within current trappings, vegetarianism or veganism as a part of feminist praxis may best be conceptualized as a means to an end, rather than as an end in and of itself. Indeed, “[a]n over-emphasis on personal conversion and vegetarian action has meant that other forms of popular political action are under developed and under theorized.”132 At this juncture, what is required is more alliance building, more collective action, and more realistic strategies for effecting political change oriented toward the shared goal and aspiration of transforming and improving the food system. While it has been widely acknowledged that plant-based diets offer superior outcomes in terms of health, environmental sustainability, and animal welfare,133 dominant corporate and political interests have prevented law and
130 Ibid at 193. 131 Lori Gruen, “Empathy and Vegetarian Commitments” in Steve F Sapontzis, ed, Food For Thought: The Debate Over Eating Meat (Amherst, NY: Prometheus Books, 2004) 284 at 285. 132 Plumwood, supra note 41 at 291. 133 Anthony J McMichael et al, “Food, Livestock Production, Energy, Climate Change, and Health” (2007) 370:9594 The Lancet 1253 at 1253–54; David Tilman & Michael Clark, Vol. 40 Windsor Review of Legal and Social Issues 57 policy from either actively promoting access to such diets for all,134 or removing barriers to adopting such diets for disadvantaged groups and communities.135 For example, in the American context, Andrea Freeman highlights the processes of food oppression136 and nutritional racism that have served to racialize the marketing of milk. While “[e]arly milk promoters associated the whiteness of milk with the putative purity of racial whiteness … Modern milk marketing, in contrast, seeks to appeal directly to African Americans and Latina/os.”137 More than other categories of food, meat, and dairy products are frequently tied up with agendas that do not prioritize the health and well being of humans, nonhuman animals, or the planet. When it comes to the kinds of new food innovations discussed earlier, it is not the technological dimension itself that renders the fit between new food 2019 CanLIIDocs 3714 innovations and ethical consumption practices an onerous one. Rather, the problem is what a technologically mediated relationship to food portends: an
“Global Diets Link Environmental Sustainability and Human Health” (2014) 515:7528 Nature 518 at 518; E Hallström, A Carlsson-Kanyama & P Börjesson, “Environmental Impact of Dietary Change: A Systematic Review” (2015) 91 J Cleaner Production 1 at 1–2; Nancy Auestad & Victor L Fulgoni III, “What Current Literature Tells Us About Sustainable Diets: Emerging Research Linking Dietary Patterns, Environmental Sustainability, and Economics” (2015) 6:1 Advances in Nutrition 19 at 19–20. 134 For example, meat and dairy industry lobby groups have taken significant umbrage to the current process of revising Canada’s food guide and the indications that the newest iteration will discourage the consumption of red meat and dairy products and encourage the consumption of plant-based proteins. Aleksandra Sagan, “Canada’s Food Guide Overhaul Opens Industry Battle Over Meat and Dairy”, The Globe and Mail (9 August 2017), online:
138 Rabb, supra note 115 at 286. 139 Melissa Marie Legge & Margaret Robinson, “Animals in Indigenous Spiritualities: Implications for Critical Social Work” 6:1 J Indigenous Soc Development 1 at 3; Andrew Brighten, “Aboriginal Peoples and the Welfare of Animal Persons: Dissolving the Bill C-10B Conflict” (2011) 10:1 Indigenous LJ 39 at 41–42. 140 Casandia Bellevue, “GMOs, International Law and Indigenous Peoples” (2017) 30:1 Pace Intl L Rev 1 at 3. Vol. 40 Windsor Review of Legal and Social Issues 59 values of interdependency, respect, reciprocity, and ecological sensibility.”141 The applicability of this definition to food products of biotechnology is tenuous at best. More broadly, the IFSN notes that Indigenous food systems are “maintained through our active participation in traditional land and food systems,”142 reflecting an intimate, reciprocal interaction with the environment that is predicated on a distinguishable set of ethical principles.143 Ecofeminism also espouses that developments like IVM do not contribute towards the cultivation of such a relational ethic. In many ways, the approach predicated on cultivating meat as a consumable is directly antithetical to the approach of cultivating care towards each other, other species, and the Earth at large. As Richard Kline observes, “[t]he political crux of ecofeminism and kindred accounts of intersectionality is to not only create cultures in which 2019 CanLIIDocs 3714 other animals matter, but to move ‘culture,’ precisely, away from norms of animal exploitation.”144 Even while IVM may substantially improve the welfare of animals farmed for food, it fails to address the exploitation associated with treating and conceptualizing nonhuman animals as food, nor does it address the problematic gendered dimensions of meat eating. Instead, as Wyatt Galusky puts it, “meat is made to reflect specific current values.”145 In order to break away from established patterns of thinking and behaviour, a much more explicitly contingent and ethical approach is necessary—one in which we acknowledge both the imperfections in ourselves and of our institutions, yet continue to strive to make changes for the better, adapting and adjusting all the while. In considering the broader social, ethical, and legal considerations associated with new and emerging technological developments in the food
141 Indigenous Food Systems Network, “Indigenous Land and Food Systems”, online: Indigenous Food Systems Network
146 La Via Campesina, “The International Peasant’s Voice”, online: La Via Campesina: International Peasant’s Movement
Sensitive to the critiques that have already been levied, some food justice activists explicitly emphasize “the barriers that low-income or otherwise marginalized groups face in realizing the goals of the broader food movement, such as access to fresh, unprocessed food.”151 Just like environmental justice activists who have emphasized the discriminatory outcome of certain policies, as opposed to their intent, food justice activists similarly point out that “a variety of institutional policies, such as the U.S. Department of Agriculture’s discrimination against African American farmers or the supermarket industry’s practice of charging lower prices in suburban versus urban locations, through which communities of color have been systematically disadvantaged.”152 Thus, like the food sovereignty movement, the food justice movement embraces the synergy that flows from an approach that stresses both grassroots activism and 2019 CanLIIDocs 3714 the advancement of a policy agenda of structural change.
VI. CONCLUSION
Ultimately, the key theme uniting considerations about what constitutes an appropriate relationship between veganism and feminism is that of choice.153 This does not mean that we all enjoy the same freedoms of choice when it comes to what we eat and how it is produced. On the contrary, the theme of choice in this context explicitly grapples with the reality that not all choices are made equal. Put differently, the choices that we make about food are not apolitical, and “[o]ne need not be aware of the fact that one’s food practices oppress others in order to be an oppressor.”154
151 Ibid at 49. 152 Alkon & Agyeman, “Introduction: The Food Movement”, supra note 19 at 8 [footnotes omitted]. 153 This sentiment should not be mistaken as an expression of “choice feminism”, which relies on the discourse of individual empowerment to suggest that women’s choices about activities as diverse as work, marriage, reproduction, pornography, and cosmetic procedures are liberating personal decisions. Choice feminism has been heavily critiqued for its lack of attention to systemic inequalities and lack of demand for collective action; See e.g. Rachel Thwaites, “Making a Choice or Taking a Stand? Choice Feminism, Political Engagement and the Contemporary Feminist Movement” (2017) 18:1 Feminist Theory 55. 154 Curtin, supra note 33 at 71. 62 Windsor Review of Legal and Social Issues Vol. 40
Food is a particularly unique domain in that in most cases, the choice is not simply whether or not to consume it altogether, but what and how much of it we consume. In response to the various consequences associated with industrial animal agriculture and the consumption of animal products, some have decided to adopt the traditional vegan-feminist position, reflecting the stance that “morality often requires individuals to accept burdens that others do not have to bear.”155 Others have come to a contrary conclusion, though their justifications for continuing to consume flesh foods and other animal products differ widely. Nevertheless, new developments, including the emergence of technologically mediated alternatives to meat and other animal products, compel us to constantly challenge and renew our beliefs. New food innovations do not represent a panacea for the multifaceted 2019 CanLIIDocs 3714 problems they seek to solve. The advancement of cellular agriculture does not absolve “[t]he relatively few humans who enjoy routine access to flesh, eggs, and milk products [from] consider[ing] the drain of resources and environmental decay caused by these privileges.”156 In addition to the environmental considerations, there are also profound social and ethical questions arising from these developments. For example, Galusky frames the central question raised by IVM as “what kind of world, what kind of human, what kind of nature do we anticipate in our technological designs?”157 To this, we could add: what kind of relationships do our technological designs enable or disenable? What are the foreseeable consequences flowing from these relationships? How are these consequences mediated by the law and other institutional structures? And what about the consequences that are not anticipated? The scope and scale of factors that go into answering these questions are vast, and there is no one-size-fits-all solution. In making dietary choices, individually and collectively, we must consider the concerns about animal, economic, social, environmental, gender, intra- and inter-generational and inter- species injustices, and the complex ways in which they intersect. Inevitably, there will be trade-offs that have to be made. Thus, an inclusive perspective like
155 Lucas, supra note 39 at 157. 156 Ibid at 169. 157 Galusky, supra note 145 at 946. Vol. 40 Windsor Review of Legal and Social Issues 63 ecofeminism that views “all of the various forms of oppression as central to an understanding of particular institutions”158 can lead to a more nuanced problematization of the implicit or explicit barriers to shifting toward more sustainable food systems, including those of class, culture, and income. Uncovering the structural or systemic root causes can help inform better solutions, both within and outside of the law. This is by no means an easy task. The tendency to simplify complex information and think in terms of binaries is intuitive. Humans are plagued with multiple additional cognitive distortions, from myopia when it comes to evaluating solutions to expectation bias when it comes to evaluating results. These tendencies risk being amplified at the institutional level, given the incentive for politicians to deliver—or at the very least, promise—results 2019 CanLIIDocs 3714 according to election cycles. Meanwhile, corporate short-termism and a narrow focus on the bottom-line acts as a major obstacle to thinking and acting more sustainably and ethically, and industry influence and regulatory capture remain significant problems in the agri-food sector. Weaving all of these threads together, both at the level of theory and action, is a challenging endeavour. However, as Plumwood writes, if a better contextualized position “is less hypocritical about opposing human oppression, more helpful to activists, more convincing to a wider variety of people and less disruptive of connections to ecological and human liberation movements, some greater complexity would appear to be a price well worth paying.”159 To this end, the ways in which our dietary choices are enabled, constrained, shaped, and limited must be carefully contextualized within broader political economy frames.160 Clearly, the issue of who is being asked to reconsider their commitment to the consumption of animal products is an important one, as is the question of how. Veganism is not just a nutritional
158 Greta Gaard & Lori Gruen, “Ecofeminism: Toward Global Justice and Planetary Health” (1993) 2:1 Society & Nature 1 at 29 [emphasis in original]. 159 Plumwood, supra note 41 at 303. 160 Corey Wrenn, “Toward a Vegan Feminist Theory of the State” in David Nibert, ed, Animal Oppression and Capitalism: Vol 2: The Oppressive and Destructive Role of Capitalism (Santa Barbara, Cal: Praeger, 2017) 201 at 204–05. 64 Windsor Review of Legal and Social Issues Vol. 40 choice, or one that reflects individual ethical commitments, but can be a political stance that forms “part of your response against misogyny, racism, environmental destruction, and climate change and for food justice and compassion.”161 To be sure, some arguments for veganism can also work to reproduce existing patterns of inequality.162 Nevertheless, the point that feminist-veganism tries to make about resisting the patriarchal and capitalist values that allow meat eating to be a pervasive, accepted, and even promoted norm is lost when technological palliatives are presented as an appropriate solution to the problem, thereby subverting a genuine engagement with the underlying issues. In Western culture, “[m]eat eating, like heterosexuality, is viewed as a compulsive institutional norm that is ‘imposed, managed, organized, 2019 CanLIIDocs 3714 propagandized, and maintained by force’ for the purpose of ensuring male- dominated society’s rightful access to nonhuman animals and to their flesh.”163 Technological fixes are trying, in their own limited ways, to “revolutionize” food production and consumption, but attitudinal superstructures remain largely intact under a strictly technical approach. Margaret Robinson’s position, discussed above, reveals how a vegan Aboriginal position might be constructed, demonstrating that norms are more than capable of shifting. Accordingly, social practices, legal standards, and institutional structures cannot lag behind our technologies if we are to ensure that the voices and the needs of the marginalized are heard and accounted for in ongoing and emerging discourses about the future of food and agriculture. Although it is clear that there are important links between feminism and vegetarianism/veganism, it does not automatically follow that advocating for universal vegetarianism or veganism broadly supports an anti-oppression agenda. Just as food production practices cannot be evaluated purely on their
161 Carol J Adams & Virginia Messina, Protest Kitchen: Fight Injustice, Save the Planet, and Fuel Your Resistance One Meal at a Time (Newburyport, Mass: Conari Press, 2018) at 2 [emphasis in original]. 162 Ella Fegitz & Daniela Pirani, “The Sexual Politics of Veggies: Beyoncé’s ‘Commodity Veg*ism’” (2018) 18:2 Feminist Media Studies 294 at 294–95, 303. 163 Kheel, supra note 46 at 329. Vol. 40 Windsor Review of Legal and Social Issues 65 outputs, there are real distinctions to be made between groups in terms of the tangible impacts of their food production and consumption practices, and also their intangible cultural and ethical relationships toward food. Advocating for universal vegetarianism or veganism is laudable in its intent (i.e. reducing the environmental, social, and ethical harms arising from dominant modes of industrial animal agriculture today), but it eliminates the possibility of trying to correct—or at minimum, acknowledge—the pervasive effects of systemic disadvantage that shape contemporary food practices. To borrow a principle from international environmental law, we have “common but differentiated responsibilities and respective capabilities”164 when it comes to our individual, national, and global approaches to our diets. At the same time, it is not enough to assume that what has been is what 2019 CanLIIDocs 3714 will always be. It is patently obvious that the existing food system suffers from a number of serious deficiencies, which manifest as food insecurity, food injustice, and malnutrition, amongst other consequences. The laws and policies relating to current food production systems, as well as their alternatives, must reflect a thoughtful consideration of all of these issues before rushing to embrace a technological fix. The relationship between agricultural biotechnology and poverty is already complex,165 and without value-sensitive design and context- specific application, the needs of the most vulnerable are unlikely to be met by technologies developed without close attention paid to local systems. In thinking about shifting towards large-scale production systems for alternatives to animal products, wherever they are derived from (plants, cells, or otherwise), it is also important to consider where the associated benefits and burdens will likely
164 United Nations Framework Convention on Climate Change, 4 June 1992, 1771 UNTS 107 at 1 (entered into force 21 March 1994): “[T]he global nature of climate change calls for the widest possible cooperation by all countries and their participation in an effective and appropriate international response, in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions”. 165 Food and Agriculture Organization of the United Nations, “The State of Food and Agriculture 2003–04: Agricultural Biotechnology: Meeting the Needs of the Poor?” (2004) at 3–5, online (pdf): Food and Agriculture Organization of the United Nations
166 Shiva, Stolen Harvest, supra note 81 at 4. Vol. 40 Windsor Review of Legal and Social Issues 67
RE(DE)FINING PROSTITUTION AND SEX WORK: CONCEPTUAL CLARITY FOR LEGAL THINKING
Debra Haak*
I. INTRODUCTION
Recent developments in the legal framework applicable to the exchange of sexual services for consideration in Canada have exposed and mobilized debate over the problems associated with prostitution and sex work and how to respond to them. Before 2013, it was not illegal to buy or sell sexual acts in Canada, but 2019 CanLIIDocs 3714 criminal laws curtailed how prostitution could be conducted. In December of 2013, the Supreme Court of Canada (“SCC”) declared three Criminal Code1 offences applicable to adult prostitution unconstitutional on the basis that they violated the applicants’ right to security of the person by making a lawful activity more dangerous in ways that did not accord with the principles of fundamental justice.2 In 2014, the Canadian Parliament enacted the Protection of Communities and Exploited Persons Act (“PCEPA”),3 which seeks to abolish prostitution by ending demand through criminalizing obtaining sexual services for consideration as well as other activities that establish and promote a market for sexual services.4 Prostitution is now illegal in Canada; it is a criminal offence
* Debra Haak is a PhD Candidate and Teaching Fellow (Queen’s); MPhil (St Andrews); LLB (UNB); Hons BA (Western); of the Bar of Ontario. Many thanks to Lisa Dufraimont, Dana Phillips, and Daniel Del Gobbo for their thoughtful comments on an earlier draft of this article, as well as to the participants at the Feminist Legal Studies Queen’s Conference (March 2018) and at the Annual Meeting on Law and Society (June 2018) where this work was presented, the peer reviewers, and the journal editors.
1 Criminal Code, RSC 1985, c C-46 [Criminal Code]. 2 Canada (AG) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101 [Bedford SCC]. 3 Protection of Communities and Exploited Persons Act, SC 2014, c 25 [PCEPA]. 4 For a discussion of the objectives of the PCEPA see Debra M Haak, “The Initial Test of Constitutional Validity: Identifying the Legislative Objectives of Canada’s New Prostitution Laws” (2017) 50:3 UBC L Rev 657 at 660 [Haak].
68 Windsor Review of Legal and Social Issues Vol. 40 every time sexual services are exchanged for consideration.5 The constitutionality of the new criminal laws has been questioned,6 and at least two constitutional challenges to new criminal offences have been commenced.7 A review of the provisions and operation of the PCEPA is mandated by 2020.8 Contemporary debate over the appropriate role of the state and of criminal law in the commercial exchange of sex largely centres on a dichotomy that posits the exchange as either sexual exploitation or legitimate work.9 One side in the debate understands prostitution as exploitation of women and women’s bodies on a structural basis, focusing on the equality and human rights interests of women as a class. From this perspective, harm is inherent in prostitution itself, and choice cannot overcome the inherent harm of sexual exploitation and the objectification that results from the exchange of sexual acts 2019 CanLIIDocs 3714 for payment. Those who understand prostitution as inherently exploitive generally support Canada’s current criminal legislative regime that targets buyers and those who facilitate the exchange of sexual services for consideration
5 Criminal Code, supra note 1, s 286.1 (Section 286.1 makes it an offence to obtain sexual services for consideration). See also R v Alexander et al, 2016 ONCJ 452 at para 14, 2016 CarswellOnt 12535 (“prostitution itself is now illegal” where the Court considered whether there was sufficient evidence to commit the defendants to stand trial for charges under sections 286.1–286.5 of the Criminal Code); Sonia Lawrence, “Expert-Tease: Advocacy, Ideology and Experience in Bedford and Bill C-36” (2015) 30:1 CJLS 5 at 7 (where the author identifies that selling sex is no longer legal) [Lawrence]; Hamish Stewart, “The Constitutionality of the New Sex Work Law” (2016) 54:1 Alta L Rev 69 at 79 (where the author describes it as unlawful). 6 See Sandra Ka Hon Chu & Rebecca Glass, “Sex Work Law Reform in Canada: Considering Problems with the Nordic Model” (2013) 51:1 Alta L Rev 101 [Chu & Glass] (where the authors argue that a model premised on ending demand would not survive constitutional scrutiny). But see Lisa Dufraimont, “Canada (AG) v Bedford and the Limits on Substantive Criminal Law under Section 7” (2014) 67:1 SCLR (2d) 483 at 485 (where the author concludes that it may be constitutionally permissible for Parliament to criminalize prostitution itself). 7 Both challenges arise in the context of criminal proceedings; See R v Anwar & Harvey Court File No 16-7780 (OCJ West Region) [Anwar]; R v Chisholm Court File No 14315/16 (SCJ Central East Region) [Chisholm]. 8 PCEPA, supra note 3, s 45.1. 9 Christine Overall, “What's Wrong with Prostitution? Evaluating Sex Work” (1992) 17:4 Signs: J Women in Culture and Society 705 at 707. Vol. 40 Windsor Review of Legal and Social Issues 69 but immunizes sellers from criminal prosecution.10 Conversely, those who understand sex work as a legitimate form of service work reflective of the exercise of individual agency or choice, or treat it as a site to expand the boundaries of sexuality and gender usually argue that commercial sex between adults must be decriminalized and destigmatized.11 The sex workers’ rights movement focusses on the human and labour rights of sex workers. Those who advocate for the rights of sex workers situate the problems they experience in the criminal law, its enforcement, and the stigma associated with sex work. They seek to reduce the harms experienced by sex workers and optimize their employment opportunities.12 Critics on both sides of this policy debate identify that it is based on ideology incorporating theoretical and normative claims about the nature of the underlying act, such that developing policies and enacting laws 2019 CanLIIDocs 3714 from within one ideological13 frame invariably leads to choices that result in
10 Sandra-Lynn Coulter & Megan Walker, Choosing the Nordic Model: Championing Women’s Equality and Human Rights (London, Ont: London Abused Women’s Centre, 2017) at 23 (Section 286.5 immunizes sellers from prosecution for most offences). 11 Brenda Belak & Darcie Bennet, Evaluating Canada’s Sex Work Laws: The Case for Repeal (Vancouver: Pivot Legal Society, 2016) [Pivot Report]; See also Amnesty International, “Explanatory Note on Amnesty International’s Policy on State Obligations to Respect, Protect and Fulfil the Human Rights of Sex Workers, POL 30/4062/2016” (26 May 2016), online (pdf): Amnesty International
70 Windsor Review of Legal and Social Issues Vol. 40 winners and losers.14 This ideology frames how empirical research is conducted, what is identified as problematic, and how it suggests law and policy should respond to articulated problems. This article seeks to bring conceptual clarity to legal discourse in Canada by stepping outside of the existing ideological framework to focus on the descriptive features of the word “prostitution” and the term “sex work” as they are defined and employed in works and contexts relevant to legal decision makers in Canada.15 I contend that the word “prostitution” and the term “sex work” are not synonymous. Understanding the differences in how these terms are defined and used in scholarly literature or legal argument is critical for decision makers tasked with evaluating empirical research and the constitutionality of Canada’s new criminal laws applicable to prostitution. In 2019 CanLIIDocs 3714 particular, a nuanced understanding of how these words are defined and used allows legal decision makers to consider whose interests and experiences are addressed in theoretical and empirical works, in addition to the factual basis provided in these works, and legislative responses to them.16 Clearer definitions also expose differently situated rights holders who might, by making competing
14 See e.g. Lisa Kerr, Book Review of Sister Wives, Surrogates and Sex Workers: Outlaws by Choice? by Angela Campbell (2016) 28:3 Can J Women & L 676 at 679 (with specific reference to Angela Campbell’s agent-victim binary). 15 In a recent article about human trafficking, Dempsey identified the importance of attending to legal definitions in generating reliable empirical research for use by legal decision-makers. See Michelle Madden Dempsey, “What Counts as Trafficking for Sexual Exploitation? How Legal Methods Can Improve Empirical Research” (2017) 3:1 J Human Trafficking 61 [Dempsey]. See also Michael Pendleton, “Non-Empirical Discovery in Legal Scholarship – Choosing, Researching and Writing a Traditional Scholarly Article” in Mike McConville, ed, Research Methods for Law (Edinburgh: Edinburgh University Press, 2017) 159 at 172 (where the author identifies that interpreting words is the essence of law). 16 It has been suggested that the experiences of sex workers are ignored and misrepresented in research promoting anti-trafficking efforts and that the experiences of sex trade survivors are excluded from research about sex work. See e.g. Emily van der Meulen & Elya M Durisin, “Introduction” in Emily van der Meulen & Elya M. Durisin, eds, Selling Sex (Vancouver: UBC Press, 2013); See also Meagan Tyler, “Where do Survivors Fit in Australian Sex Industry Research” (1 November 2016) Tasmanian Times, online:
17 For a discussion of how Parliament tried to balance the concerns identified by the SCC in Bedford with the overall objective of the PCEPA see Haak, supra note 4.
72 Windsor Review of Legal and Social Issues Vol. 40 legally defined, and whose interests are included in theoretical arguments or empirical work about sex work.
II. THE CONTESTED DEBATE OVER MEANING
Divergent normative claims about what it means to exchange sexual acts for payment ground the debate over what is problematic and how criminal law is implicated in responding to identified problems.18 Janine Benedet has described these normative claims as the “paradigms of prostitution” that reflect how prostitution is understood in its social context and that provide the lens through which law reform and judicial review currently take place.19 There are two dominant ideological approaches grounding contemporary 2019 CanLIIDocs 3714 policy debates in Canada.20 Both rest on these contested and divergent normative claims about what it means to exchange sexual acts for consideration.21 The first
18 See e.g. Jane Scoular, “The ‘Subject’ of Prostitution: Interpreting the Discursive, Symbolic and Material Position of Sex/Work in Feminist Theory” (2004) 5:3 Feminist Theory 343 (for a discussion of the theoretical lenses through which prostitution and the problems associated with it are seen and understood); Lara Gerassi, “A Heated Debate: Theoretical Perspectives of Sexual Exploitation and Sex Work” (2015) 42:4 J Soc & Soc Welf 79 at 94 (where the author concludes that the “heated debates of various feminist perspectives have greatly influenced the divisions within the legal frameworks with which countries of the world are governed”) [Gerassi]; Janine Benedet, “Paradigms of Prostitution: Revisiting the Prostitution Reference” in Kim Brooks, ed, Justice Bertha Wilson: One Woman’s Difference (Vancouver: UBC Press, 2009) 131 (where the author identifies the paradigms of prostitution in the following ways: prostitution as immorality (for women); prostitution as sexual freedom (for men); prostitution as public nuisance; prostitution as sex inequality; prostitution as work; and prostitution as inevitable (harm reduction for men)) [Benedet]. 19 Benedet, supra note 18 at 133–41. 20 These ideological approaches largely mirror dominant feminist positions on this topic. See generally Kate Sutherland, “Work, Sex, and Sex-Work: Competing Feminist Discourses on the International Sex Trade” (2004) 42:1 Osgoode Hall LJ 1 139. See also Gerassi, supra note 18; Stacey Hannem & Chris Bruckert, “Legal Moralism, Feminist Rhetoric, and the Criminalization of Consensual Sex in Canada” in Jennifer M Kilty, ed, Within the Confines: Women and the Law in Canada (Toronto: Women’s Press, 2014) 318 (where the authors identify the competing discourses in the Bedford decision). 21 What Elizabeth Bernstein has called “normative visions of sexuality” and “political and ethical disputes over what sexuality should mean,” see Elizabeth Bernstein, Temporarily Yours: Intimacy, Authenticity, and the Commerce of Sex (Chicago: University of Chicago Press, 2007) 167–68. O’Connell Davidson refers to these as assumptions about the essential Vol. 40 Windsor Review of Legal and Social Issues 73 posits the activity of prostitution as a structural example of sexual exploitation and violence against women. The second posits sex work as a legitimate form of labour reflecting the individual exercise of choice and agency and a site to expand the boundaries of sexuality and gender.22 The choice of the word “prostitution” or the term “sex work” often signposts alignment with one or the other side of this debate. Divergent understandings about the nature of prostitution, its harms, and what to do about them is a longstanding issue for Canadian policy makers. In 2004, for example, a Parliamentary Subcommittee on Solicitation Laws was struck to study the laws related to prostitution in Canada.23 This represented the fourth study into prostitution law since the 1980s.24 The purpose of the committee was to “improve the safety of sex-trade workers and communities 2019 CanLIIDocs 3714 overall, and to recommend the changes necessary to reduce the exploitation of and violence against sex-trade workers.”25 The committee delivered its report in 2006. The report identified and reflected differing views on prostitution, its causes, effects, and the measures that should be taken to address them. The committee members agreed that the status quo was not acceptable but were
properties of prostitution, see generally Julia O’Connell Davidson, Prostitution, Power and Freedom (Cambridge: University of Michigan Press, 1998) (where the author aims to show that the power relations in prostitution are more complicated than either position suggests). 22 See generally Rebecca Beegan & Joe Moran, “Prostitution and Sex Work: Situating Ireland’s New Law on Prostitution in the Radical and Liberal Feminist Paradigms” (2017) 17:1 Irish J of Applied Soc Stud 59 (for a more detailed discussion of the ideologies emerging from feminist theory about prostitution and sex work). See also Carisa R Showden, Choices Women Make: Agency in Domestic Violence, Assisted Reproduction, and Sex Work (Minneapolis: University of Minnesota Press, 2011) at 137–66 [Showden] (for a discussion of what the author identifies as three models of prostitution: sex as violence, sex radicalism, and sex as work). 23 Glenn Betteridge, “Standing Committee on Justice Re-Establishes Subcommittee on Solicitation Laws” (2005) 10:1 HIV/Aids Policy & L Rev 39. 24 Leslie Ann Jeffrey & Barbara Sullivan, “Canadian Sex Work Policy for the 21st Century: Enhancing Rights and Safety, Lessons from Australia” (2009) 3:1 Can Pol Sci Rev 57 at 57. 25 House of Commons, Report of Standing Committee on Justice and Human Rights, The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws (December 2006) (Chair: Art Hanger) at Appendix A [Report of Standing Committee].
74 Windsor Review of Legal and Social Issues Vol. 40 unable to agree on how to change the laws.26 Members of the Liberal, NDP, and Parti Quebecois parties “took the position that prostitution is a public health and human rights issue; that an adult has the right to sell sexual services and to do so in a safe environment.”27 By contrast, the Conservative committee members saw prostitution as a dehumanizing and degrading act, and did not believe it possible for the state “to create isolated conditions in which the consensual provision of sex in exchange for money does not harm others” noting that all prostitution has a social cost.28 Furthermore, the committee found that decriminalization of prostitution would signal that commodification or exploitation of women and women’s bodies was acceptable. They also suggested this would violate the dignity of women and their equality rights. The divergent approaches to understanding the commercial exchange of 2019 CanLIIDocs 3714 sex have become entrenched.29 The debate has been captured in a variety of ways: It is a split between an emphasis on sexual freedom and pleasure that views women exclusively as agents, on the one hand, and an emphasis on sexual danger and degradation that sees women exclusively as victims on the other.30
Compounding the controversy in these international debates are ideological disagreements over whether to respond to the individual experience of involvement in prostitution or the structural significance of men’s commodification and consumption of female sexuality.31
26 Sarah Beer, The Sex Worker Rights Movement in Canada: Challenging the ‘Prostitution Laws’ (PhD Thesis, University of Windsor, Department of Sociology, 2010) [unpublished] at 100–01 [Beer]. 27 Ibid at 101. 28 Report of Standing Committee, supra note 25 at 90. 29 Kate Grantham, “Criminals or Victims? An Analysis of the Harper Conservatives’ Efforts on the Sex Trade and Human Trafficking” in Rebecca Tiessen & Stephen Baranyi, eds, Obligations and Omissions: Canada’s Ambiguous Actions on Gender Equality (Montreal: McGill-Queen’s University Press, 2017) 91 at 96–97 [Grantham] (for a discussion of how this fixed ideological binary is the framework within which sex trade work is considered) 30 Overall, supra note 9 at 707. 31 Vanessa E Munro & Marina Della Giusta, “The Regulation of Prostitution: Contemporary Contexts and Comparative Perspectives” in Vanessa E Munro & Marina Della Giusta, eds, Demanding Sex: Critical Reflections on the Regulation of Prostitution (Burlington: Ashgate Publishing, 2008) 1 at 4 [Munro & Della Giusta]. Vol. 40 Windsor Review of Legal and Social Issues 75
The two diametrically opposed understandings of commercial sex are that it is either a negative social phenomenon in itself that should therefore be eliminated or restricted, or that it is a multifaceted phenomenon containing negative elements, which are best dealt with by integrating the sex work sector into the societal framework.32
Scholars increasingly acknowledge that the debate as currently framed inadequately accounts for the complexity of the topic. Teela Sanders, Maggie O’Neill, and Jane Pitcher recently called the two now dominant approaches “overly simplistic”. A review of the literature indicated that the two polarized feminist perspectives are represented in public discourses and tend to reduce arguments to a small number of basic assertions that avoid the complexities of prostitution.33 2019 CanLIIDocs 3714 Marlene Spanger and Maru-Len Skilbrei express concern over how researchers manage the relationship between “what sex for sale is (ontology), how sex for sale can be known and represented (epistemology), and how research-based knowledge interacts with ideas about what should be done about sex for sale (politics).”34 Gert Vermeulen and Nina Persak note that “[a]cademic research on prostitution is mostly written through the perspective of a single research discipline, a single normative framework, or a particular stakeholder. Only to a minor extent, prostitution research relies on facts and fully unbiased empirical evidence.”35 John Lowman, who gave evidence for the applicants in
32 Petra Östergren, “From Zero-Tolerance to Full Integration: Rethinking Prostitution Policies,” (2017) DemandAT Working Paper No 10 at 9, online:
76 Windsor Review of Legal and Social Issues Vol. 40
Bedford, observed that most of the experts who gave evidence in that case researched from within one or the other of the ideological frames described.36 Scholars also point to the fact that empirical evidence about prostitution and sex work is wanting or lacking and difficult to gather.37 Feminist theory highlights the importance of listening to the voices of women who have experienced the phenomena being studied.38 While literature increasingly seeks to represent the experiences of those who engage in prostitution and sex work (including through first person testimonies,39 interviews,40 and empirical research studies41), most of this work remains focused on achieving particular
36 John Lowman, “The Role of Expert Testimony in Bedford v. Canada and R. v. McPherson” 2019 CanLIIDocs 3714 (Paper delivered at Durham Law School, Durham University, 18–19 September 2014) at 2 [unpublished] (the author identifies that while none of the parties objected to any of the expert witnesses called to give evidence in Bedford, each sought to discount the adversary’s evidence on the basis of methodological concerns or bias. All of the evidence was admitted, with the application judge evaluating how much weight it should be given). 37 Isabel Crowhurst, “Troubling Unknowns and Certainties in Prostitution Policy Claims- Making” in Marlene Spanger & May-Len Skilbrei, eds, Prostitution Research in Context: Methodology, Representation and Power (New York: Routledge, 2017) 47. See also Hayli Millar, Tamara O’Doherty & Katrin Roots, “A Formidable Task: Reflections on Obtaining Legal Empirical Evidence on Human Trafficking in Canada” (2017) 8 Anti-Trafficking Rev 34 (where the authors discuss the difficulty in obtaining reliable research about human trafficking). 38 This has been called “one of the central contributions of feminism to academic research”: Lawrence, supra note 5 at 5–6. 39 See generally Caroline Norma & Melinda Tankard Reist, eds, Prostitution Narratives: Stories of Survival in the Sex Trade (Victoria, Australia: Spinifex Press, 2016). See also Rachel Moran, My Journey Through Prostitution (New York: WW Norton & Company, 2013); See also River Redwood, “Myths and Realities of Male Sex Work: A Personal Perspective” in Emily van der Meulen, Elya M Durisin & Victoria Love, eds, Selling Sex: Experience, Advocacy, and Research on Sex Work in Canada (Vancouver: UBC Press, 2013). 40 See e.g. Julie Bindel, The Pimping of Prostitution: Abolishing the Sex Work Myth (London, UK: Palgrave Macmillan, 2017) (where the author conducted around 250 interviews in 40 different locations). 41 See e.g. Canadian Institute of Health Research, “(Understanding) Sex Work: A Health Research & Community Partnership” (2016) online:
Three Dimensions of Self-Esteem: Self-Worth, Authenticity and Self-Efficacy” (2018) 20:1 Culture, Health & Sexuality 69 [Benoit, “Sex Work and Three Dimensions”]; Cecilia Benoit et al, “Prostitution Stigma and Its Effect on the Working Conditions, Personal Lives, and Health of Sex Workers” (2018) 55:4 J Sex Research 457 [Benoit, “Prostitution Stigma”]; Cecilia Benoit et al, “Would you Think about Doing Sex for Money? Structure and Agency in Deciding to Sell Sex in Canada” (2017) 31:5 Work, Employment & Society 1 [Benoit, “Would you Think”]; Cecilia Benoit, Nadia Ouellet & Mikael Jansson, “Unmet Health Care Needs Among Sex Workers in Five Census Metropolitan Areas of Canada” (2016) 107:3 Can J Public Health 266; Bill McCarthy, Cecilia Benoit & Mikael Jansson, “Sex Work: A Comparative Study” (2014) 43:7 Arch Sex Behav 1379. 42 Michelle Madden Dempsey, “How to Argue About Prostitution” (2012) 6:1 Crim L & Philosophy 65 at 76 (“[b]y constructing their research projects with an eye primarily on the task of making a difference in the real world and influencing their audience to adopt particular policies, they leave behind the paradigmatic task of the empirical researcher—that is, adding to our body of empirical knowledge”). 43 Cecelia Benoit et al, “‘Well, It Should be Changed for One, Because It’s Our Bodies’: Sex Workers’ Views on Canada’s Punitive Approach towards Sex Work” (2017) 6:1 Soc Sci 52 [Benoit, “Sex Workers’ Views”]. 44 Janice G Raymond, Not a Choice, Not a Job: Exposing the Myths About Prostitution and the Global Sex Trade (Virginia: Potomac Books, 2013) at xii [Raymond]. 45 See Vermeulen & Peršak, supra note 35 (where the authors aim to include both dimensions in their examination of empirical and policy work about prostitution and the social reaction to it).
78 Windsor Review of Legal and Social Issues Vol. 40 does not preclude also recognizing that individual women and girls may not subjectively experience those effects. Another potential means of making sense of this apparent dichotomy lies in a more nuanced appreciation for the descriptive aspect of the word prostitution and the term sex work. The remainder of this article focuses on the definitional distinctions between prostitution and sex work relevant in legal contexts.
III. THE USE OF “PROSTITUTION” AND “SEX WORK” IN CANADIAN JURISPRUDENCE
The word “prostitution” has been defined by Canadian courts to refer to the activity of exchanging sexual services for payment or consideration. The activity 2019 CanLIIDocs 3714 legally defined as “prostitution” is now illegal in Canada. Despite increasing reference to the term “sex work” in contemporary jurisprudence, no Canadian court has to date defined it, even though it is increasingly used as if it were interchangeable with the word “prostitution”. This section examines the use of the word “prostitution” and the term “sex work”46 in the context of Canadian jurisprudence47 and new criminal laws applicable to prostitution, raising concerns over the lack of conceptual clarity.
a. Legal Definition of Prostitution
The word “prostitution” was defined by the Supreme Court of Canada in the Prostitution Reference case as follows: “[i]t seems to me that there is little
46 The term sex trade is also used regularly used in legal texts. It has been defined as “an umbrella term that encompasses both legal and illegal transactions through which sexual acts are exchanged for money or other goods” and is likely a more apt synonym for prostitution than sex work. See Grantham, supra note 29 at 93. 47 Jurisdiction matters in identifying how words are used and what meaning is ascribed to them. See Dempsey, supra note 15 at 68. See also Stuart P Green, “What Counts as Prostitution?” (2016) 4:1 Bergen J of Crim L & Crim J 184 at 185: “[t]he key is to recognize that how we choose to define prostitution will inevitably depend on why we believe one or more aspects of prostitution are wrong or harmful, or should be criminalized or otherwise deterred, in the first place”. Vol. 40 Windsor Review of Legal and Social Issues 79 dispute as to the basic definition of prostitution, that being the exchange of sexual services of one person in return for payment by another.”48 At that time, the word “prostitution” was used in the definition of “common bawdy-house” included in then section 193 (later section 197) of the Criminal Code and was included in the wording of the offence in section 195.1(1)(c). “Prostitution” was not defined in the Criminal Code.49 The definition of “prostitution” set out by the SCC in the Prostitution Reference decision is consistent with definitions used in subsequent cases. In R v Mara, the Ontario Court of Appeal provided this well recognized definition: “[t]he basic definition of prostitution is the exchange of sexual services in return for payment.”50 “Prostitution” has been identified by the Quebec Court of Appeal as a term of common usage and an objective concept.51 The Alberta 2019 CanLIIDocs 3714 Court of Queen’s Bench defined “prostitution” to mean: “sexual acts performed for money.”52 The Ontario Superior Court of Justice recently reasoned as follows: “[a] prostitute is, for all intents and purposes, a person who offers or provides sexual services for consideration.”53
b. Canada’s Legislative Response to Prostitution
The objectives and provisions of contemporary criminal laws related to prostitution in Canada focus on the activity of exchanging sexual services for
48 Reference re ss 193 and 195.1(1) of the Criminal Code, [1990] 1 SCR 1123 at 1159, [1990] 4 WWR 481 [Prostitution Reference] (where the SCC identified the word “prostitution” as a term of common usage). 49 Section 197 of the Criminal Code defined “prostitute” to mean “a person of either sex who engages in prostitution”, however, the definition was repealed in 2014. 50 (1996) 27 OR (3d) 643 at 14, 133 DLR (4th) 201 (On CA). 51 R v Tremblay, [1991] RJQ 2766 at 453–54, 41 QAC 241. 52 R v Juneja, 2009 ABQB 243 at para 27, [2009] AWLD 3120. 53 R v Evans, 2017 ONSC 4028 at para 136, 140 WCB (2d) 373.
80 Windsor Review of Legal and Social Issues Vol. 40 consideration.54 Where previous criminal laws targeted the suggested adverse effects of this activity,55 current legislative provisions target the activity directly. Canada’s earliest criminal laws related to prostitution were codified in Canada’s first Criminal Code in 1892.56 Early Criminal Code offences targeted both vagrancy and nuisance (bawdy-house, living on the avails, and street walking), as well as coercion.57 Scholars identify that the streetwalking provision effectively made the status of being a prostitute against the law.58 They also identify that early prohibitions on prostitution were gender specific.59 Buyers were not in violation of criminal laws unless found in a bawdy-house. Canada’s vagrancy laws were removed from the Criminal Code in 1972. The provisions aimed at street prostitution were replaced by a prohibition on solicitation for the purpose of prostitution. In November of 1985, Parliament 2019 CanLIIDocs 3714 introduced Bill C-49 which included a communicating provision.60 In 1990, the
54 Criminal Code, supra note 1, s 286.1. Section 286.1 makes it an offence to obtain sexual services for consideration. The phrase “sexual services for consideration” has been in the Criminal Code since 1997 when the previous section 212(4) was enacted, and there is a developed body of case law interpreting the phrase. 55 See Lauren Jones, “Canadian Prostitution Law: History and Market Impacts” in Scott Cunningham & Manisha Shah, eds, The Oxford Handbook of the Economics of Prostitution (New York: Oxford University Press, 2016) 391 [Jones] (for a discussion of the history of Canada’s prostitution laws); Along with the common laws it inherited from Britain, the Contageous Diseases Act allowed for the detention of diseased prostitutes for up to three months at a certified hospital –– to protect military men from venereal disease, see Constance Backhouse, “Nineteenth-Century Canadian Prostitution Law Reflection of a Discriminatory Society” (1985) 18:36 Soc Hist 387 at 390. The Indian Act 1880 prohibited Indigenous women from “keeping, frequenting, or being found in disorderly houses”–– a mechanism to uphold racial segregation between Indigenous peoples and the white settler population. See Constance Backhouse, “Canadian Prostitution Law 1829-1972” in Prostitution in Canada (Ottawa: Canadian Advisory Council on the Status of Women, 1984) 7 at 16–17. 56 Ibid. 57 Ibid. In 1892, procuring offences were enacted to address exploitation and what was referred to as the white slave trade: Frances M Shaver, “The Regulation of Prostitution: Avoiding the Morality Traps” (1994) 9 Can JL & Soc 123 at 128–29 [Shaver] (while targeting coercive conduct, the word coercion was not used). 58 Supra note 55. 59 Shaver, supra note 57 at 127 (where the author identifies earliest laws targeted women and later laws, in place until 1972, targeted male exploiters). 60 Bill C-49 became law in December of 1985. Vol. 40 Windsor Review of Legal and Social Issues 81
SCC dismissed Charter challenges to the bawdy-house and solicitation offences, in the case in which the above definition of prostitution was set out.61 Until 2014, while prostitution itself was not directly criminally sanctioned, criminal laws continued to target the public nuisance associated with prostitution and the exploitation of those engaged in it.62 In 2007, two legal proceedings were commenced to challenge the constitutionality of criminal laws then applicable to adult prostitution.63 The Bedford case reached the highest court first. In Bedford, three individuals who identified as then current or former sex workers,64 commenced an application in the Ontario Superior Court of Justice seeking a declaration that section 210 (the “Bawdy-House Offence”), section 212(1)(j) (the “Living on the Avails Offence”), and section 213(1)(c) (the “Communicating Offence”) of the Criminal Code were unconstitutional and 2019 CanLIIDocs 3714 of no force and effect.65 They founded this claim on the contention that the impugned criminal provisions violated section 7 of the Charter, that the deprivation did not accord with the principles of fundamental justice. Furthermore, they held that the provisions could not be justified under section 1 of the Charter as a reasonable limit demonstrably justified in a free and democratic society.66
61 Section 193 created offences related to common bawdy-houses and section 195.1(1)(c) precluded solicitation for the purpose of prostitution, see Prostitution Reference, supra note 48. 62 While many authors suggest that Canada’s prostitution laws to this point were grounded solely in nuisance, the SCC’s decision in Bedford specifically identified exploitation as an objective of one of the impugned offences, see Angela Campbell, “Sex Work’s Governance: Stuff and Nuisance” (2015) 23:1 Fem Leg Stud 27 (discussion of the nuisance objective). 63 See Bedford SCC, supra note 2. See also Canada (AG) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 SCR 524 [SWUAV]; In addition to the legal grounds relied on in Bedford, in SWUAV it was argued that the then existing prostitution laws violated sections 2(d) and 15 of the Canadian Charter of Rights and Freedoms, ss 2(d), 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 64 The courts used the term prostitutes. This point will be further discussed below. 65 Bedford v Canada, 2010 ONSC 4264 at para 4, 102 OR (3d) 321 [Bedford Application]. 66 Ibid. It was also argued that the Communicating Offence violated section 2(b) of the Charter in a way that could not be justified under section 1.
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In 2013, the SCC declared the Bawdy-House Offence (as it related to prostitution), the Living on the Avails Offence, and the Communicating Offence inconsistent with the Charter and therefore void. The SCC struck the word “prostitution” from the definition of “common bawdy-house” in section 197(1) of the Criminal Code as it applied to the Bawdy-House Offence only. Following a finding that the three impugned criminal provisions failed to accord with the principles of fundamental justice, the SCC suspended the declaration of invalidity for a period of one year, “returning the question of how to deal with prostitution to Parliament.”67 The SCC provided Parliament with 12 months in which to respond before adult prostitution would have been effectively decriminalized in Canada.68 The SCC acknowledged that dealing with prostitution is complex and sensitive. The court held that how prostitution is 2019 CanLIIDocs 3714 regulated is a matter of great public importance which few countries leave unregulated. The SCC stated that Parliament was not precluded by the decision from imposing limits on where and how prostitution might be conducted in Canada. In suspending the declaration of invalidity, the SCC reasoned that “moving abruptly from a situation where prostitution is regulated to a situation where it is entirely unregulated would be a matter of great concern to many Canadians.”69 The Canadian government introduced Bill C-36 on June 4, 2014, and it received Royal Assent on November 6, 2014. The PCEPA came into force on December 6, 2014. Parliament responded to the decision of the SCC in Bedford by amending the Bawdy-House Offence to remove reference to prostitution, repealing the Living on the Avails Offence,70 and repealing and replacing the Communicating Offence to align with a new legislative objective. Parliament
67 Bedford SCC, supra note 2 at para 2. 68 See generally Peter M Hogg, Allison A Bushell Thornton & Wade K Wright, “Charter Dialogue Revisited—or ‘Much Ado About Metaphors’” (2007) 45:1 Osgoode Hall LJ 1 (discussion of Charter dialogue). 69 Bedford SCC, supra note 2 at para 167. Provinces and territories would likely have some role in regulating a legal sex industry, including in relation to safety in commercial establishments. Provincial and municipal laws that adversely impacted sex workers could also give rise to constitutional challenges. 70 As well as the other offences included in section 212. See Criminal Code, supra note 1. Vol. 40 Windsor Review of Legal and Social Issues 83 also enacted four new offences and immunized those who exchange their own sexual services for consideration from prosecution. Canada’s current prostitution laws criminalize the activity of prostitution itself, such that obtaining sexual services for consideration is a criminal offence. The legislative scheme aims to denounce and deter both exchanging sexual services for consideration and activities that support a market for sexual services. It does so on the basis that prostitution as an activity is understood to be a gendered practice—a form of sexual exploitation that disproportionately and negatively impacts women and girls—and that it is harmful to those who engage in it and to society at large.71 Parliament expressed “grave concerns about the exploitation that is inherent in prostitution and the risks of violence posed to those who engage in it.”72 The preamble to the PCEPA identified that 2019 CanLIIDocs 3714 social harm results from “the objectification of the human body and the commodification of sexual activity” and that, to protect human dignity and equality, prostitution must be discouraged.73 The centrepiece of the new legislative scheme is the criminalization of obtaining sexual services for consideration,74 a provision intended to make prostitution itself illegal in Canada.75 Section 286.1 makes it an offence to obtain the sexual services of another person for consideration, or to communicate for that purpose. The new legislative scheme also criminalizes activities that create a market for sexual services. Section 286.2 makes it an offence to receive a financial or other material benefit knowing it to be derived from the commission
71 See PCEPA, supra note 3 at Preamble. See also Canada, Department of Justice, Technical Paper: Bill C-36, Protection of Communities and Exploited Persons Act (Ottawa: Department of Justice, 1 December 2014) at 3 [Technical Paper] (describing how Canada’s new legislative approach to prostitution was informed by the evidence and decision in Bedford, public consultations held in February and March of 2014, jurisprudence, and domestic and international research and government reports). For an analysis of the Parliamentary Committee hearings, see Genevieve Fuji Johnson, Mary Burns & Kerry Porth, “A Question of Respect: A Qualitative Text Analysis of the Canadian Parliamentary Hearings on The Protection of Communities and Exploited Persons Act” (2017) 50:4 Can J of Pol Sci 921. 72 PCEPA, supra note 3 at Preamble. 73 Ibid. 74 Criminal Code, supra note 1, s 286.1. 75 Technical Paper, supra note 71 at 5–6. See also House of Commons Debates, 41st Parl, 2nd Sess, Vol 147, No 101 (11 June 2014) at 6653 (Hon Peter MacKay).
84 Windsor Review of Legal and Social Issues Vol. 40 of an offence under section 286.1. Section 286.3 makes it an offence to procure another person to offer or provide sexual services for consideration. Section 286.4 prohibits advertising an offer to provide sexual services. Those who exchange their own sexual services for consideration are immunized from prosecution under most of the new offences.76 In a technical paper intended to provide an overview of the decision of the Supreme Court in Bedford and to explain the basis for Parliament’s legislative response, the Department of Justice confirmed that the PCEPA targeted the activity of prostitution and discussed what was meant by the term “sexual services for consideration.”77 They noted that whether a particular act constituted a “sexual service for consideration” was a question of fact to be determined by a court. The test to be applied considers whether the service is 2019 CanLIIDocs 3714 “sexual in nature” and whether the purpose of providing the service is “to sexually gratify the person who receives it.”78 A contract or agreement for a specific sexual service in return for some form of consideration is required; consideration must be contingent on provision of a particular service; and the
76 Criminal Code, supra note 1, ss 286.4, 286.5(1)(d). 77 This term has been described as vague and unclear, however courts have long interpreted this term and the SCC has found this definition of prostitution not to be impermissibly vague. See Andrea Sterling & Emily Van der Meulen, “We are Not Criminals: Sex Work Clients in Canada and the Constitution of Risk Knowledge” (2018) 33:3 CJLS 291. But see Prostitution Reference, supra note 48, at 1159–60 (where the SCC considered then section 193 of the Criminal Code and reasoned: “[i]n terms of words and phrases like ‘prostitution’ and ‘acts of indecency’, I note that they have been given meaning by courts on many occasions, and I re-iterate that these are largely terms of common usage … It seems to me that there is little dispute as to the basic definition of prostitution, that being the exchange of sexual services of one person in return for payment by another … I wish to make reference to a pre-Charter case dealing with s. 193 of the Code, R. v. Hislop, Ont. C.A., September 22, 1980, unreported (summarized 5 W.C.B. 124). In dismissing the challenge to the offence of keeping a common bawdy-house, MacKinnon A.C.J.O. stated the following at page 4 of the court's reasons: The words attacked have been in the Criminal Code since 1917 and have been interpreted and applied by our courts without difficulty for years. We do not think the words are vague, uncertain or arbitrary … Of course, the very nature of language will always mean that there will be a certain area of flexibility open to interpretation and judicial appreciation. This does not equate with impermissible vagueness. I conclude that s. 193 of the Criminal Code is not impermissibly vague as courts have and continue to give the words and phrases found therein sensible meaning”). 78 Technical Paper, supra note 71 at 5. Vol. 40 Windsor Review of Legal and Social Issues 85 contract or agreement must be entered into before the sexual service is provided.79 In the technical paper, the Department of Justice identified that: “[i]n most cases, physical contact, or sexual interaction, between the person providing the service and the person receiving it is required.”80 Courts in Canada have held that pornography81 and stripping82 do not constitute prostitution or “sexual services for consideration.”83 The constitutionality of the PCEPA has been questioned.84 It has been suggested that the criminal provisions enacted by the PCEPA may violate sections 2(b), 2(d), 7, 11, and 15 of the Charter. 85 At least two constitutional challenges to some of these provisions have been commenced in the context of criminal proceedings.86 In a recent decision, the Ontario Superior Court of 2019 CanLIIDocs 3714
79 See ibid: “[s]exual activity involving no expectation of getting paid for the services provided does not meet the test. Sexual activity in the context of ongoing relationships also fails to meet the test, unless the evidence shows that the alleged consideration was contingent on the provision of a particular sexual service. Another case held that the phrase “sexual services for consideration” is not intended to apply to consensual actions between those having an affinity towards one another”. 80 Ibid. See also R v Bauer (1999), OJ No 5294 (Ct J), 45 WCB (2d) 280 [Bauer]. 81 See e.g. Bauer, supra note 80 at para 47. 82 See e.g. R v Saftu, [2001] OJ No 3046 at para 12–13, 50 WCB (2d) 514 (Ontario Court of Justice noted that “private dancing” or “lap dancing” might cross the line separating “mere erotic entertainment from acts of prostitution”). 83 Ibid (the Department of Justice identified that the following activities have been “found to constitute a sexual service or an act of prostitution, if provided in return for some form of consideration: lap-dancing … ; masturbation of a client in the context of a massage parlour … ; and, sado-masochistic activities, provided that the acts can be considered to be sexually stimulating/gratifying”). 84 See e.g. Chu & Glass, supra note 6. See also Letter from Adam J Norget et al, Concerned Citizens and Members of the Legal Profession (7 July 2014) “Re: Canada’s response to the decision in Canada (Attorney General) v. Bedford”, online:
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Justice upheld the constitutionality of three of Canada’s new criminal prostitution laws.87 Arguments that the new criminal laws applicable to adult prostitution are unconstitutional are principally founded on a contention that the PCEPA violates the Charter rights of sex workers. Pivot Legal Society (“Pivot”), a Canadian organization committed to decriminalization of adult sex work, released a report in 2017 calling for repeal of the PCEPA.88 Pivot argues that the ban on purchasing impacts sex workers’ safety by putting them in increased risk of danger and creates a distinction that sets sex workers apart and perpetuates dehumanizing stereotypes about them.89 Pivot argues that the communicating offence inhibits free speech and places sex workers at greater risk by impeding their ability to negotiate consent and make intimate decisions about their 2019 CanLIIDocs 3714 bodies,90 and that the material benefit offences “strip … sex workers of the opportunity to create and maintain supportive work environments where they can expect fair labour practices” while mitigating their workplace risks.91 They argue that the advertising offence makes it “more difficult for sex workers to enjoy the safer conditions of indoor work and to set boundaries with clients about the conditions they work under and the services they offer.”92
c. References to Sex Work in Jurisprudence
The term “sex work” is increasingly used by Canadian courts either interchangeably with the word “prostitution”, or on its own.93 Since 2010, the
87 Boodhoo, supra note 86 at para 12 (where the the applicants applied for an order declaring sections 286.2(2), 286.3(2) and 286.4 of the Criminal Code to be unconstitutional on the basis that sections 286.2(2), 286.3(2) and 286.4 were overbroad and grossly disproportionate, offending section 7 of the Charter, and that section 286.4 was arbitrary and offended section 7 and section 2(b) of the Charter.) 88 Pivot Report, supra note 11. 89 Ibid at 45–46. 90 Ibid at 47–52. 91 Ibid at 59. 92 Ibid at 63. 93 Prostitution and sex work have also been used interchangeably by representatives of the Canadian government. See e.g. House of Commons, Report of Standing Committee on Justice Vol. 40 Windsor Review of Legal and Social Issues 87 term “sex work” has been used in at least 39 decisions in Canadian courts and tribunals.94 In no case has a Canadian court provided a definition for this term. In those decisions that courts and tribunals have used both “prostitution” and “sex work”, they have used them interchangeably as if they bore the same meaning.95 The decisions of the courts in Bedford and in SWUAV, the concurrent constitutional challenges to then existing criminal provisions applicable to adult
and Human Rights, The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws (December 2006) at n 2 (Chair: Art Hanger) [Challenge of Change]. The word and term are also used by scholars without definition in theoretical work. The potential adverse 2019 CanLIIDocs 3714 implications of this on our understanding and our thinking cannot be understated. 94 Boodhoo, supra note 86; R v Esho and Jajou, 2017 ONSC 6152, [2017] OJ No 5418 [Esho]; R v Ackman, 2017 MBCA 78, 354 CCC (3d) 172; R v McDonald, 2017 ONCA 568, 351 CCC (3d) 486; R v Evans, 2017 ONSC 4028, 140 WCB (2d) 373 [Evans]; R v Ellis, 2017 ONSC 3812, [2017] OJ No 3196; R v Deiaco, 2017 ONSC 3174, [2017] OJ No 3081; R v Wruck, 2017 ABQB 32; R v Akumu, 2016 BCSC 2500, [2017] BCWLD 5739; Re 1512-11494, 2016 ONSBT 4926; Araya v Nevsun Resources Ltd, 2016 BCSC 1856, [2016] BCWLD 7429 ; R v McCart, 2016 ONCJ 512, [2016] OJ No 4488; R v Stubbs, 2016 ONSC 3756, [2016] OJ No 3115; R v Denny, 2016 NSPC 83, 139 WCB (2d) 74; Re TSL-73260-16, 2016 CanLII 38751 (ON LTB); Lin v Canada, 2016 CanLII 96719 (CA IRB); R v H(H), 2015 ONCJ 392, [2015] OJ No 3881; Atira Property Management v Richardson, 2015 BCSC 751, [2015] BCWLD 4586; N(P) v R(F) and another (No 2), 2015 BCHRT 60, [2015] BCWLD 3412; Re KM, 2014 CanLII 78987 (ON CCB); BC/Yukon Association of Drug War Survivors v Abbotsford, 2014 BCSC 1817, [2014] BCWLD 7379; Kazi v Canada, 2014 CanLII 83460 (CA IRB); Providence Health Care Society v Canada (AG), 2014 BCSC 936, [2014] BCWLD 6062; R v Calnen, 2014 NSPC 17, [2014] NSJ No 735; Aderinboye v Picard, 2014 ONSC 2279, [2014] WDFL 2219; R v Parent, 2014 QCCS 132, 111 WCB (2d) 717; R v Beszedes, 2013 BCSC 2500, [2013] BCJ No 2965; R v Cardinal, 2013 YKTC 30, [2013] YJ No 27; Padilla v Canada (Minister of Citizenship and Immigration), 2013 FC 247, 223 ACWS (3d) 1005; SWUAV, supra note 63; R v McPherson, 2011 ONSC 7717, [2011] OJ No 6548; Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134; Ogden v British Columbia (Registrar of Companies), 2011 BCSC 1151, [2011] BCJ No 1615; Imafidon v Canada (Citizenship and Immigration), 2011 FC 970, [2011] FCJ No 1192; R v Mernagh, 2011 ONSC 2121, [2011] OJ No 1669; R v Bedford, 2010 ONCA 814, [2010] OJ No 5155; Downtown Eastside Sex Workers United Against Violence Society v Canada, 2010 BCCA 439, [2010] BCWLD 8413; Bedford v Canada, 2010 ONSC 4264, [2010] OJ No 4057; R v Samuels, 2013 ONCA 551, [2013] OJ No 4200. 95 See e.g. Esho, supra note 94 (where both prostitution and sex work are used interchangeably and without definition). See also Evans, supra note 94 (where both prostitution and sex work are used interchangeably, and prostitution is defined while sex work is not).
88 Windsor Review of Legal and Social Issues Vol. 40 prostitution,96 provide some insight into how “prostitution” and “sex work” may coalesce in a way that fails to address any potential distinction between them. The claim in the Bedford case was framed as a deprivation of sex workers’ rights. Counsel for the applicants in Bedford identified that the challenge to three of the then existing criminal laws applicable to adult prostitution was specifically designed to attack the contribution of those laws to the daily risks faced by sex workers.97 The applicants’ claim, as set out in the Notice of Application, was founded on the contention that the impugned provisions deprived sex workers of their right to liberty and their right to security of the person.98 In their decisions in the Bedford case, however, the courts at all three levels used the word “prostitution” and not the term “sex work” in the body of 2019 CanLIIDocs 3714 their decisions. The application judge provided a definition of prostitution, relying on an earlier decision of the Ontario Court of Appeal: “‘Prostitution’ has been defined as ‘lewd acts for payment for the sexual gratification of the purchaser.’”99 She defined a “prostitute” as “a person of either sex who engages in prostitution.”100 The application judge characterized the applicants’ claim as follows: “[t]he applicants’ case is based on the proposition that the impugned provisions prevent prostitutes from conducting their lawful business in a safe environment.”101 She further described their section 7 claim as alleging that “the operation and intersection of the impugned provisions materially contribute to the violence faced by prostitutes.”102
96 For a discussion of the social and legal story of the SWUAV litigation, see Lisa Kerr & Elin Sigurdson, “‘They Want In’: Sex Workers and Legitimacy Debates in the Law of Public Interest Standing” (2017) 80 SCLR (2d) 145 at 154–71 [Kerr & Sigurdson]. 97 Alan Young, “Afterword” in Emily van der Meulen, Elya M Durisin & Victoria Love, eds, Selling Sex: Experience, Advocacy, and Research on Sex Work in Canada (Vancouver: UBC Press, 2013) 123 at 124. 98 Bedford v R (20 March 2007), Toronto, On CJ 07-CV-329807PD1 at para 2(f) (Notice of Application) 99 Bedford Application, supra note 65 at para 248. 100 Ibid at para 276. 101 Ibid at para 8. 102 Ibid at para 10. Vol. 40 Windsor Review of Legal and Social Issues 89
No definition of “sex work” or “sex worker” was provided in any of the decisions in the Bedford case and the application judge suggested the decision about which term to use was political, rather than legal, reflecting at least in part a personal preference:
It has been brought to my attention that some people prefer the term sex worker to prostitute, which they consider to be pejorative. Others decry the use of sex worker as they claim it ignores the plight of victimized women forced into prostitution. This judgment uses the term prostitute as a legal term in accordance with the Criminal Code and should not be understood to enter the debate over the proper political term to be used.103
At each level however, the courts merged the identifying features of the 2019 CanLIIDocs 3714 applicants with those of the group described throughout the decisions as prostitutes. As a result, they used the word “prostitution” to refer to adults104 engaged in a legal activity,105 and evidence about the effect of prostitution or the laws applicable to it on victims of trafficking was excluded.106 Despite acknowledging that there is no one experience of prostitution that is representative of the experience of all prostitutes,107 the courts made findings addressing the group, which they referred to throughout their decisions as prostitutes.108
103 Ibid, n 4. 104 Ibid at para 6 (the laws related to persons under the age of 18 were not challenged). 105 Ibid at para 55; Bedford SCC, supra note 2 at paras 98–99 (the narrow question before the courts was whether the impugned criminal provisions violated the rights of the applicants to engage in what the application judge referred to as their “livelihood” and the Court of Appeal described as a “lawful commercial activity”). 106 Bedford Application, supra note 65 at para 357 (in criticizing the evidence given by one of the respondent’s expert witnesses, the application judge noted that some of her “statements on prostitutes were based on her research on trafficked women”). However, the word prostitution as it has been legally defined does not exclude exchanges of sexual acts for compensation where that exchange takes place in the context of human trafficking or third-party coercion. This point will be further discussed. 107 Ibid at para 88 (the application judge reasoned: “it is clear that there is no one person who can be said to be representative of prostitutes in Canada”). 108 Ibid at para 8 (the application judge stated that the applicants’ case was “based on the proposition that the impugned provisions prevent prostitutes from conducting their lawful
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Their understanding of prostitution directly affected the courts’ analysis of harm and harm avoidance. While the application judge recognized that harm could be understood in different ways,109 she focused on physical violence, and the way in which the impugned criminal provisions inhibited the applicants’ ability to take steps to reduce their risk of experiencing physical violence. She made no reference to the gendered and racialized nature of prostitution cited in intervenor submissions.110 She expressly rejected evidence of the harm experienced by those who engaged in prostitution in the context of human trafficking.111 The application judge did acknowledge that the risk of experiencing harm is not equally distributed across all seller constituencies. There was, however, no concurrent discussion of whether and how the ability to take basic precautions to avoid experiencing harm might also be unequally 2019 CanLIIDocs 3714 distributed. At no point did the courts in Bedford consider whether the steps identified as having the potential to reduce prostitutes’ risk of experiencing violence were equally available to and likely to be availed of by all prostitution participants.112 A distinction between the words “prostitution” and “prostitute”, and the terms “sex work” and “sex worker”, was expressly acknowledged by the
business in a safe environment”); Bedford SCC, supra note 2 at para 73 (throughout its decision, the SCC likewise found: “the impugned laws negatively impact and thus engage security of the person rights of prostitutes”); Bedford SCC, supra note 2 at para 18 (in summarizing the decision of the application judge, the SCC also noted that the application judge found that the impugned laws deprived “the applicants and others like them” of their liberty and security of the person). 109 Bedford Application, supra note 65, n 9, at para 344. 110 Jennifer Koshan, “Teaching Bedford: Reflections on the Supreme Court’s Most Recent Charter Decision” (24 December 2013), ABLawg (blog), online:
“Prostitute” is defined in s. 197(1) of the Criminal Code. However, the respondents used the term “sex worker” in their Statement of Claim and the subsequent amendments to it. The meaning of the term as the respondents use it has evolved through several versions in the course of these proceedings, and it is not co-extensive with the meaning of the term “prostitute” defined in the Criminal Code.114 2019 CanLIIDocs 3714 While the individual plaintiff was referred to by the SCC as a sex worker, in setting out the basis of the plaintiffs’ claims, the SCC set out the claims with reference to the impact of the impugned provisions on the rights of prostitutes (rather than sex workers).115 In the first two challenges commenced to Canada’s new criminal prostitution laws, the constitutional rights of sex workers are again directly at issue. In the first constitutional challenge to three of the new offences targeting adult prostitution, the applicants are two individuals charged under three of the new criminal offences in relation to their ownership and operation of an escort agency. The applicants contend that the provisions violate the rights of “escorts and other sex workers.”116 The terms “escort”, “sex work”, and “sex worker” are
113 Downtown Eastside Sex Workers United Against Violence Society and Sheryl Kiselbach v Canada (AG) (15 December 2008), Vancouver, BC SC, S075285 at paras 20–45 (Amended Statement of Claim). See also Kerr & Sigurdson, supra note 96 at 157. 114 SWUAV, supra note 63 (Factum of the Appellants at para 9). 115 SWUAV, supra note 63 at para 8. 116 Anwar, supra note 7 (Notice of Application Re: Constitutionality of ss.286.2, 286.3 and 286.4 of the Criminal Code). The applicants were charged with three of the new criminal offences applicable to adult prostitution: section 286.2 (the “Procuring Offence”); section 286.3 (the “Material Benefit Offence”); and section 286.4 (the “Advertising Offence”). They had been co-owners of a commercial business offering sexual acts by female employees in exchange for payment, including through online advertising. No “escort or other sex worker”
92 Windsor Review of Legal and Social Issues Vol. 40 not defined in the pleadings. In Boodhoo, the applicants challenged the constitutionality of three of the new criminal provisions relating to sexual services provided by a person under the age of 18 years.117 In their factum, the applicants claimed that the impugned provisions criminalized various activities related to sex work118 and specifically characterized the objectives of the new legislative provisions as: to enhance the safety, security and dignity of people involved in sex work.119 The terms “sex work” and “prostitution” appear to be used interchangeably and neither is defined. Both are used in the decision upholding the constitutionality of the impugned provisions.120
IV. DISTINGUISHING SEX WORK FROM PROSTITUTION
2019 CanLIIDocs 3714 While the word “prostitution” has been legally defined in Canada to mean the activity of exchanging sexual services for consideration, the term “sex work” is usually used to refer to that activity and others when engaged in by seller participants bearing certain characteristics, most notably that they are adults, who engage as a matter of consent and in the absence of third party coercion. This section examines how the term “sex work” has evolved and is now defined
was a party to or has to date given evidence in the case. The applicants rely on the use of reasonable hypotheticals—a device that allows judges to evaluate whether a law has an adverse impact on third parties other than the accused. The applicants will bear the onus of establishing reasonable hypothetical circumstances in which enforcing the impugned provisions would violate the section 7 rights of a third party to the proceeding. This means the adverse impact must apply to situations that commonly arise. Witten argues that the reasonable hypothetical is a poor tool for assessing proportionality. See also Lauren Witten, “Proportionality as a Moral Process: Reconceiving Judicial Discretion and Mandatory Minimum Penalties” (2017) 48:1 Ottawa L Rev 81 at 100. 117 Sections 286.3(1) and (2), 286.2 and 286.4 (pursuant to which they were convicted but have not yet been sentenced). See Boodhoo, supra note 86 (Factum of the Applicant). 118 Boodhoo, supra note 86 (Factum of the Applicant at para 1). 119 Ibid at para 21. In a recent article examining what counts as human trafficking in empirical research studies, Dempsey identified the importance of legal definitions in promoting rights claims and influencing legal decision makers and policy makers. For a discussion of the objective of Canada’s new prostitution laws, see generally Haak, supra note 4 at 694 (where the author argues that it is not an objective of the new legislative provisions to improve the safety of those who continue to engage in prostitution). 120 Boodhoo, supra note 86. Vol. 40 Windsor Review of Legal and Social Issues 93 and used in scholarly and non-scholarly work, demonstrating that it is not synonymous with the word “prostitution” as it has been legally used in Canada.
a. Prostitutes’ Rights Movement
In the 1970s, the prostitutes’ rights movement began to reconstruct the social problems associated with prostitution and shift the focus from the activity of exchanging sex for money to the rights of women who engaged in that activity. The term “sex work” was first used in the late 1970s as a conceptual tool to promote the political aims of the pragmatic movement to invigorate prostitution with new meaning.121 Three central claims underlie the prostitutes’ rights movement: not all 2019 CanLIIDocs 3714 prostitution is forced prostitution; prostitution is work and should be respected and treated like other service work; and to deny the right to work as a prostitute under conditions of one’s own choosing is a human rights violation.122 Valerie Jenness notes that to challenge historically developed images of prostitution, the movement relied on “two accessible and powerful linguistic devices to present an alternative image of prostitutes. One of these is the focus on the “work of prostitution,” while the other is the focus on the “civil rights” of prostitutes as
121 The official launch of the prostitutes’ rights movement has been attributed to an event that took place in Lyons, France, in 1975. Local prostitutes took over a church and publicized a list of grievances at the core of which was a plea for protection from police harassment arising from the enforcement of French prostitution laws. Around the same time, the prostitutes’ rights group COYOTE emerged in San Francisco and quickly developed branches in cities throughout the United States. See Valerie Jenness, Making it Work: Prostitutes’ Rights Movement in Perspective (Piscataway: Aldine Transaction, 1993) at 2–3, 114 [Jenness, Making it Work]. COYOTE was founded by Margo St James, an ex-prostitute, to instigate and sponsor protests to bring attention to the abuse of local prostitutes and provide community services to women and prostitutes. It has been acknowledged that only a small percentage of COYOTE’s members at that time actually worked as prostitutes. See also Raymond, supra note 44 at 10. 122 Valerie Jenness, “From Sex as Sin to Sex as Work: COYOTE and the Reorganization of Prostitution as a Social Problem” (1990) 37:3 Soc Problems 403 at 404, 416 [Jenness, “From Sex as Sin”] (Jenness described COYOTE as “an organization vying for control of the definition of a social problem… COYOTE has attempted to change the discourse surrounding prostitution by severing prostitution from its historical roots with sin, crime, and illicit sex. COYOTE locates the social problem of prostitution firmly in the discourse of work, choice, and civil rights” at 404). See also Jenness, Making it Work, supra note 121 at 5.
94 Windsor Review of Legal and Social Issues Vol. 40 service workers.123 In the early stages of the movement, those advocating for the rights of prostitutes worked to reframe prostitutes as service workers,124 “invoking and institutionalizing a vocabulary of sex as work, prostitutes as sex workers, and prostitutes’ civil rights as workers.”125 Two main theoretical arguments emerged in scholarly work to animate the human rights claims of sex workers. The first, grounded in liberal feminism, constructs “sex work” as a choice often made in constrained circumstances, arguing that the activity could be made safer by the removal of criminal laws and the stigma surrounding it. This argument emphasizes “rights, the legitimacy of consent and a conception of equality based on gender neutrality.”126 The second theoretical argument draws on postmodern feminism and queer theory, emphasizing “the radical potential of sex work in exploding and expanding the 2019 CanLIIDocs 3714 boundaries of sexuality and gender.”127 Sex work represents economic empowerment and expressive freedom.128 Sex work is considered liberating and
123 Jenness, “From Sex as Sin”, supra note 122 at 405. 124 Ibid. 125 Ibid at 417. See also Jenness, Making it Work, supra note 121 at 120–21 (where the author also identifies how the crusade and its claims are not located in and do not reflect discussions about sex itself). Jenness identified that this had the effect of severing “the social problem of prostitution from its historical association with crime, illicit sex, and disease”. 126 Lisa Carson & Kathy Edwards, “Prostitution and Sex Trafficking: What are the Problems Represented to Be? A Discursive Analysis of Law and Policy in Sweden and Victoria, Australia” (2011) 34:1 Austl Feminist LJ 63 at 65 [Carson & Edwards]. See Martha C Nussbaum, “Whether from Reason or Prejudice: Taking Money for Bodily Services” (1998) 27:2 J of Legal Studies 693 at 696 (in a formative article, Nussbaum argued that we all take money for the use of our bodies, and that feminist theory is insufficiently grounded in working class lives and too focused on sexuality. Nussbaum suggested that lack of employment opportunities was the most urgent issue raised by prostitution, and that legalizing prostitution would likely make things better for women). 127 Leslie Ann Jeffrey & Gayle Macdonald, Sex Workers in the Maritimes Talk Back (Canada: UBC Press, 2006) at 10. 128 See Elizabeth Bernstein, “What’s Wrong with Prostitution? What’s Right with Sex Work? Comparing Markets in Female Sexual Labour” (1999) 10:1 Hastings Women’s L Rev 91 at 95–101 (for an overview of feminist theories of prostitution). See also Noah D Zatz, “Sex Work/Sex Act: Law, Labor, and Desire in Constructions of Prostitution” (1997) 22:2 Signs: J Women in Culture and Soc 277 (who argues the act is a site of powerful sexual pluralism). Vol. 40 Windsor Review of Legal and Social Issues 95 an opportunity for self fulfillment.129 The idea of prostitution as transgressive is founded on the idea of bodily need and pursuit of sexual pleasure on the buyer’s part, and the idea that the seller sells a service but not his or her self.130 From its inception, the term “sex work” has been used in a way that has drawn a distinction between so called forced and free prostitution. From the early days of the prostitutes’ rights movement, advocates were concerned with “dispelling the myth that prostitution is forced sexual slavery and that all prostitutes are necessarily victimized.”131 Early activists articulated prostitution as a mutually consensual relationship and suggested that any exploitation was at the hands of law authorities.132 With the growing public awareness of human trafficking, the sex workers’ rights movement consistently distinguished sex work from human trafficking,133 arguing that they not be conflated to “ensure 2019 CanLIIDocs 3714 equal protection for the rights of sex trade workers and women who are trafficked.”134 However, scholars question whether it is possible to distinguish forced prostitution from free prostitution, highlighting for example the need to
129 “The complex, multiple prostitution exchange is a site of powerful sexual pluralism, capable of contesting hegemonic constructions of sexuality.” See also Carol Leigh, “Inventing Sex Work” in Jill Nagle, ed, Whores and Other Feminists (New York: Routledge, 1997) 223 [Leigh]. 130 Sherene Razack, “Race, Space, and Prostitution: The Making of the Bourgeois Subject” (1998) 10:2 Can J Women & L 338 at 347. 131 Jenness, Making it Work, supra note 121 at 5. 132 Efforts focused on stopping harassment by police, and having police treat offences as victimless therefore issuing citations but not arresting. COYOTE instigated at least 26 lawsuits with the support of ACLU and others. COYOTE argued that people had a right to choose prostitution as an occupation, and that if they chose that occupation, they had the right to engage in it without violations of their civil rights. Jenness, “From Sex as Sin”, supra note 122 at 406–07. 133 This distinction is not universally drawn by sex workers or their advocates, see e.g. Juno Mac & Molly Smith, Revolting Prostitutes: The Fight for Sex Workers’ Rights (London: Verso, 2018) at 56–86 (for a discussion of the need for sex workers to talk also about trafficking). 134 Grantham, supra note 29 at 108. See also Kamala Kempadoo et al, eds, Challenging Trafficking in Canada: Policy Brief (Toronto: Centre for Feminist Research York University, 2017) at 108.
96 Windsor Review of Legal and Social Issues Vol. 40 recognize women’s experiences as existing on a continuum where a range of “constraining contexts” may be taken into account.135 However, the central claims and theoretical arguments made by sex workers’ rights advocates about the nature of sex work are contested. Some scholars argue they focus only on individual interests and insufficiently account for the structural contexts in which individual decisions are made, including the gendered, racial, and socioeconomic inequalities that underlie the prostitution exchange. Maddy Coy and Benedet identify the shortcomings of focusing solely on an individual account of choice or consent:
What matters is the power relationship and the coercive circumstances it produces. It is precisely this unequal power relationship…that links prostitution to a continuum of violence against women. Women’s 2019 CanLIIDocs 3714 voluntary engagement in prostitution cannot be extracted from the social conditions in which such decisions are made. Notions of women’s bodies as commodities, of men’s need and entitlement to sexual release in and through women’s bodies, and that some form of gain (not limited to the financial) cancels out harm, exploitation or inequalities, are dominant socio-cultural norms.136
Focusing only on the individual also has the effect of making the individual responsible for their own avoidance of harm.137
135 Monica O’Connor, “Choice, Agency, Consent and Coercion: Complex Issues in the Lives of Prostituted and Trafficked Women” (2017) 62 Women’s Stud Intl Forum 8 at 9 [O’Connor]. See also Maddy Coy, “This Body Which is Not Mine: The Notion of the Habit Body, Prostitution and (Dis)embodiment” (2009) 10:1 Feminist Theory 61. Coy further develops the continuum of sexual violence as a framework for exploring women's experience of sexual violation in prostitution. Her research reveals how women express the same feelings of “shame, guilt, hating the body and alienation” when discussing their experience of rape and sexual assault as they do when discussing commercial sexual acts, even where there was no violence or coercion”. 136 Maddy Coy & Janine Benedet, “Prostitution on a Continuum of Violence Against Women” (Paper delivered at National Research Day, Simon Fraser University, 9 November 2012) [unpublished]. 137 See O’Connor, supra note 135 at 14–15. See also Rachel Chagon & Francois Gauthier, “From Implicitly Christian to Neoliberal: The Moral Foundations of Canadian Law Exposed by the Case of Prostitution” in Tuomas Martikainen & Francois Gauthier, eds, Religion in the Neoliberal Age: Political Economy and Modes of Governance (Fanham, UK: Ashgate Vol. 40 Windsor Review of Legal and Social Issues 97
Catherine MacKinnon identifies that the debate over how to respond to prostitution is characterized by five moral distinctions that are used to make some examples of prostitution less problematic than others:
Adult is distinguished from child prostitution, indoor from outdoor, legal from illegal, voluntary from forced, and prostitution from trafficking. Child prostitution is always bad for children; adult prostitution is not always bad for adults. Outdoor prostitution can be rough; indoor prostitution is less so. Illegal prostitution has problems that legal prostitution solves. Forced prostitution is bad; voluntary prostitution can be not-so-bad. Trafficking is really, really bad. Prostitution––if, say, voluntary, indoor, legal, adult––can be a tolerable life for some people.138
2019 CanLIIDocs 3714 She argues that these purported distinctions are illusory and ideological, functioning to make an activity that structurally subordinates women more socially tolerable.139 Other scholars specifically question the effectiveness of policies that treat adult prostitution differently from child prostitution. Coy argues that: “[p]olicy approaches that presume a distinct market for the purchase of girls’ bodies for sex from that of adult women’s are blinkered to the myriad of connections that span the age of majority.”140 O’Hara adds that the commercial sexual exploitation of children is an integral part of the wider sex trade and when the exchange of sexual services for compensation by adults is understood as socially acceptable or inevitable, children will be recruited.141
Publishing, 2013) 177 at 190 (where the authors describe this as the privatization of risk, consistent with neoliberal principles); Raymond, supra note 44 at 15. 138 Catherine A MacKinnon, “Trafficking, Prostitution and Inequality” (2011) 46:2 Harv CR- CLL Rev 271 at 272 [MacKinnon]. 139 Ibid at 306–07. 140 Maddy Coy, “Joining the Dots on Sexual Exploitation of Children and Women: A Way Forward for UK Policy Responses” (2016) 36:4 Critical Soc Policy 572 at 587 (where the author argues that we must see prostitution as a social institution that reflects and reproduces inequality between the sexes). 141 Maureen O’Hara, “Making Pimps and Sex Buyers Visible: Recognising the Commercial Nexus in ‘Child Sexual Exploitation’” (2019) 39:1 Critical Soc Policy 108 at 121.
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In the late 1970s, sex workers’ rights organizations began to actively advocate for the decriminalization of prostitution.142 The removal of criminal offences specifically targeting prostitution became integral to the sex workers’ rights movement in Canada as well.143 Sex worker run advocacy organizations emerged in Canadian cities in the 1970s and 1980s denouncing criminalization, stigmatization, harassment, and violence.144 In 1983, the Government of Canada established a Special Committee on Pornography and Prostitution to study the problems associated with pornography and prostitution and to conduct related
142 Jenness, “From Sex as Sin”, supra note 122 at 409–10. See also Gail Pheterson, A
Vindication of the Rights of Whores (Seattle: Seal Press, 1989) at xix (where the author 2019 CanLIIDocs 3714 identifies that Jennifer James, a professor of anthropology in Seattle, coined the word “decriminalization”). 143 Emily van der Meulen, “When Sex is Work: Organizing for Labour Rights and Protections” (2012) 69 Labour 147 at 154. 144 Sarah Beer & Francine Tremblay, “Sex Workers’ Rights Organizations and Government Funding in Canada” in Carisa R Showden & Samantha Majic, eds, Negotiating Sex Work: Unintended Consequences of Policy and Activism (Minneapolis: University of Minnesota Press, 2014) 287 at 287. Sex workers’ rights activists began to organize community-based initiatives in Vancouver in the 1980s and since that time more than twenty-six sex workers rights groups have formed, see Joyce Arthur, Susan Davis & Esther Shannon, “Overcoming Challenges: Vancouver’s Sex Worker Movement” in Emily van der Meulen & Elya M Durisin, eds, Selling Sex: Experience, Advocacy, and Research on Sex Work in Canada (Vancouver: UBC Press, 2013) 130 at 144 (for a discussion of the sex worker movement in Vancouver). Similar organizations have also formed in other Canadian cities, and in 2012 the Canadian Alliance for Sex Work Law Reform was formed. The Canadian Alliance for Sex Work Law Reform is made of “sex worker led and allied organizations” across Canada (28 at the time of writing this article), see Canadian Alliance for Sex Work Law Reform, “Member Groups,” online: Sex Work Law Reform
145 Canada, Department of Justice, Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution, vol 2 (Ottawa: Department of Justice, 1985). 146 Ibid at 534. 147 Beer, supra note 26 at 24. 148 Challenge of Change, supra note 93 (where the committee members of a Parliamentary Subcommittee on Solicitation Laws were unable to agree on the appropriate legislative approach). See also House of Commons, Standing Committee on the Status of Women, Turning Outrage into Action to Address Trafficking for the Purpose of Sexual Exploitation in Canada (February 2007) (Chair: Yasmin Ratansi) [Turning Outrage into Action] (where the Standing Committee on the Status of Women recommended adopting an abolitionist approach to prostitution). 149 Evaluating the appropriateness or effectiveness of legislative approaches to prostitution and sex work rests largely on what is understood as problematic or harmful to begin with. Recently, economists have begun to develop economic models to examine the effects of prostitution policies, see e.g. Giovanni Immordino & F F Russo, “Prostitution Policy” in Scott Cunningham & Manisha Shah, The Oxford Handbook of the Economics of Prostitution (New York: Oxford University Press, 2016) 332 at 332–33. 150 See e.g. Amnesty International, supra note 11 at 21. 151 This discounts any arguments about the harms of prostitution on a structural basis.
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Second, it has the effect of placing primary or sole responsibility for harm avoidance on the individuals who engage in prostitution.152 Third, it presumes that existing public and private laws would adequately respond to any other harms (including those associated with non-consensual or coerced participation in prostitution).153 Finally, whether or not decriminalization makes sex work safer, and for whom it makes prostitution safer, is also contested.154 The problems associated with the exchange of sexual acts for compensation, and the effectiveness of laws in responding to or exacerbating those problems,155 are researched largely from within one or the other ideological framing. The assessment of whether a law is responsive or effective in reducing harm depends largely on what counts as harm and whose harm is counted.156 Better attending to how the term “sex work” is used and defined has 2019 CanLIIDocs 3714 the potential to allow policy makers and legal decision makers evaluating legal interventions to meaningfully contend with this concern.
152 O’Connor, supra note 135 at 14–15. In part due to the lack of conceptual clarity around the word prostitution and the term sex work, there is to date a lack of empirical evidence about how and whether all prostitution participants are equally able to employ measures to reduce their risks of experiencing harm. 153 To date, there is no scholarly work in Canada that focuses directly on the question of how substantive and procedural criminal and contract laws applicable to the commercial exchange of sexual acts for compensation, for example, would function following removal of prostitution-specific criminal sanctions. 154 See e.g. Scott Cunningham & Manisha Shah, “Decriminalizing Indoor Prostitution: Implications for Sexual Violence and Public Health” (2018) 85:3 Rev Economic Studies 1683 at 1684 (where the authors suggest that decriminalization increases the indoor market but decreases prices, and reduces sexual violence and improves public health outcomes). See also Seo-Young Cho, Axel Dreher & Eric Neumayer, “Does Legalized Prostitution Increase Human Trafficking?” (2012) 41 World Development 67 at 68 (where the authors conclude that where prostitution is legal, there are larger human trafficking inflows). 155 The effectiveness of the abolitionist approaches to prostitution is also contested. For a critical discussion of the impact of criminalizing the purchase of sex see e.g. Amnesty International, supra note 11 at 16–19. 156 Mariana Valverde, “The Harms of Sex and the Risks of Breasts: Obscenity and Indecency in Canadian Law” (1999) 8:2 Soc & Leg Studies 181 at 187 (where the author identifies that harm can mean many things and that harm-based approaches can have different rationales and produce different effects). Vol. 40 Windsor Review of Legal and Social Issues 101
b. Defining “Sex Work”
The term “sex work” was incepted as a political term: “[t]he use of the term ‘sex work’ signifies a self-conscious effort by advocates and self-identified sex workers to recast people selling sexual services as workers organising for the rights and protections afforded workers in any other context, including the right to be free from violence and bodily harm in the workplace.”157 The Global Network of Sex Work Projects, an international membership organization advocating for the rights of sex workers, identifies: “Our use of the term sex work … is purposeful and political and speaks to our solidarity across working contexts.”158 The terms “sex work” and “sex worker” were coined by sex workers themselves,159 and the political movement is focused on the identity 2019 CanLIIDocs 3714 of sex worker.160 The term “sex work” is not consistently defined or used in scholarly or non-scholarly literature. However, three seller characteristics increasingly qualify the term “sex work” as used in scholarly and non-scholarly works and begin to flesh out its descriptive character. First, “sex work” is usually used to refer only to sexual acts undertaken by adults. Second, the term “sex work” is almost always distinguished from human trafficking or circumstances in which participation in prostitution is coerced. Finally, consent is increasingly used in definitions of “sex work”. Each of these defining characteristics is discussed
157 Svati P Shah, “Prostitution, Sex Work and Violence: Discursive and Political Contexts on Paid Sex, 1987–2001” (2004) 16:3 Gender & Hist 794 at 795. 158 NSWP, “Consensus Statement on Sex Work, Human Rights, and the Law” (2013), n 1, online (pdf): NSWP < www.nswp.org/resource/nswp- consensus-statement- sex-work-human- rig hts-and-the-law>. 159 The term sex work is attributed to Carol Leigh (Scarlot Harlot) in 1978. See Emily van der Meulen, Elya M Durisin & Victoria Love, “Introduction” in Emily van der Muelen & Elya M Durisin, eds, Selling Sex: Experience, Advocacy, and Research on Sex Work in Canada (Vancouver: UBC Press, 2013) 1 at 17 [Van der Meulen, Durisin & Love]. See also Leigh supra, note 129 at 225 (where the author asserts “I invented sex work. Not the activity, of course. The term” at 225. See also the author’s engagement with the sex workers’ rights movement). 160 Van der Meulen, Durisin & Love, supra note 159 at 2 (where the authors note that the language of sex work and sex workers is “a critical framework through which sex workers articulate their realities”).
102 Windsor Review of Legal and Social Issues Vol. 40 below, revealing “sex work” as distinct from “prostitution” and establishing “sex workers” as a subset of those who engage in the activity legally defined as prostitution. The term “sex work” has been defined and used in two recent texts promoting decriminalization using the qualifying characteristics of adults, who consent, and who have not been forced or coerced by a third party. In 2016, Amnesty International (“Amnesty”) adopted a policy calling for “the decriminalization of all aspects of adult consensual sex work.” 161 Around the same time, in Canada, Pivot recommended repealing “all criminal laws that prohibit the purchase or sale of sexual services by adults and that limit adults selling sex from working with others in non-coercive situations.”162 Both Amnesty and Pivot describe “sex work” as an activity engaged in 2019 CanLIIDocs 3714 by adults who consent. They define “sex work” as “the exchange of sexual services (involving sexual acts) between consenting adults for some form of remuneration, with the terms agreed between the seller and the buyer.”163 Amnesty defines “consent” as “the voluntary and ongoing agreement to engage in a particular activity” and uses “consent” as a factor to distinguish “sex work” from “human trafficking”, “sexual exploitation”, “sexual violence”, and “gender-based violence”.164 Pivot identifies “consent” as a principal tenet of
161 Amnesty International, supra note 11 at 2; Amnesty set out states’ obligations to “respect, protect, and fulfil the human rights of sex workers” and detailed state actions that Amnesty believed would “best address the barriers that sex workers routinely face in realizing their rights.” Amnesty further noted: “This policy is grounded in the principles of harm reduction, gender equality, recognition of the personal agency of sex workers, and general international human rights principles.” To protect the human rights of sex workers, Amnesty considered it necessary to: (a) repeal laws criminalizing the sale of sex; (b) repeal laws criminalizing the buying of sex from consenting adults; and (c) repeal laws criminalizing the organization of sex work. Amnesty took no position on whether and how sex work should potentially be regulated. 162 Pivot Report, supra note 11 at 4, 6, 75 (Pivot argued that the PCEPA is unconstitutional and made recommendations aimed at “creating laws that respect and promote the human rights of sex workers” and “creat[ing] a safer sex industry”). 163 Amnesty International, supra note 11 at 3; Pivot Report, supra note 11 at 9. Sex workers are defined by Amnesty as adults aged 18 and older who “receive money or goods for the consensual provision of sexual services, either regularly or occasionally.” Pivot refers to sex workers as “people who earn income through exchanging sex”. 164 Amnesty International, supra note 11 at 15, 28. Vol. 40 Windsor Review of Legal and Social Issues 103
Canadian sexual assault law, noting that “consent” must be voluntary and affirmative, can never be assumed or given on behalf of another person, and may be withdrawn at any time.165 Amnesty identifies that if consent is not voluntary and ongoing, the sexual activity constitutes rape and is a human rights abuse that must be treated as a criminal offence.166 Amnesty identifies that consent analysis needs to be situated in the broader understanding of individual autonomy.167 Both Amnesty and Pivot also distinguish “sex work” from “human trafficking”.168 Pivot states plainly that “[s]ex work (the consensual exchange of sexual services for money) is not trafficking.”169 Amnesty’s position, however, is somewhat less concise. Amnesty uses “consent” to distinguish “sex work” from “human trafficking”, “sexual exploitation”, “sexual violence”, and “gender-based violence”.170 Amnesty states that “where consent is absent for 2019 CanLIIDocs 3714 reasons including threat or use of force, deception, fraud, and abuse of power or involvement of a child, such activity would constitute a human rights abuse which must be treated as a criminal offence.”171 Some scholars disagree with the proposition that trafficking would necessarily negate consent, specifying that victims of trafficking who have been forced or coerced can nonetheless consent.172 Concerns over the utility of criminal sanctions targeting only the absence of consent is heightened in circumstances where a purchaser has no knowledge of the trafficking or coercion: “[t]he single biggest moral obstacle to prosecution lies in the objection that the users of trafficked prostitutes should not be prosecuted for unwittingly
165 Pivot Report, supra note 11 at 50. 166 See Amnesty International, supra note 11 at 26–28 (for Amnesty’s position on consent, coercion and autonomy). 167 Ibid at 26. 168 The terms human trafficking is also used in a variety of ways that do not always align with legal definitions, see generally Dempsey, supra note 15. 169 Pivot Report, supra note 11 at 75. 170Amnesty International, supra note 11 at 15, 26–28. 171 Ibid at 4, 26. 172 See e.g. Dempsey, supra note 15 at 66.
104 Windsor Review of Legal and Social Issues Vol. 40 using women they do not know to be coerced into prostitution.”173 In Canada, it is possible that those who purchase sex from someone who has been trafficked could avail themselves of the defence of honest but mistaken belief. The term “sex work” is also sometimes used to refer to activities that fall outside of the legal definition of “prostitution” in Canada. For example, courts have held that pornography and stripping do not constitute “sexual services for consideration.” 174 Ronald Weitzer notes that while “sex work” does involve the exchange of sexual services for material compensation, it also includes selling erotic performances or products. He suggests that “sex work” includes both acts of direct physical contact and “indirect stimulation” including pornography, stripping, telephone sex, live sex shows, and erotic webcam performances.175 Showden suggests that there are many forms of “sex work” and that 2019 CanLIIDocs 3714 “prostitution” is the form of “sex work” that is illegal and the most stigmatized.176 Lowman uses the words “prostitution” and “prostitute” to distinguish the “exchange of physical sexual services for reward” from other kinds of “sex work” and “sex worker”.177
c. Empirical Research about Sex Work in Canada
Scholars and activists increasingly accept the privileging of sex workers and sex worker organizations in generating knowledge about sex work.178 In Canada,
173 David Archard, “Criminalizing the Use of Trafficked Prostitutes: Some Philosophical Issues” in Vanessa E Munro & Marina Della Giusta, eds, Demanding Sex: Critical Reflections on the Regulation of Prostitution (Abingdon: Ashgate, 2008) 149 at 151. 174 See e.g. Technical Paper, supra note 71 at 5 (for a discussion of how courts have interpreted “sexual services for consideration”). 175 Ronald Weitzer, Legalizing Prostitution: From Illicit Vice to Lawful Business (New York: New York University Press, 2012) at 3. 176 Showden, supra note 22 at 135–37. 177 John Lowman, “Crown Expert-Witness Testimony in Bedford v Canada: Evidence-Based Arguments or Victim-Paradigm Hyperbole?” in Emily van der Muelen & Elya M Durisin, eds, Selling Sex (Vancouver: UBC Press, 2013) 230 at 246, n 1. 178 See e.g. Lorraine Nencel, “Epistemologically Privileging the Sex Worker” in Marlene Spanger & May-Len Skilbrei, eds, Prostitution Research in Context: Methodology, Representation and Power (New York: Routledge, 2017) 67. See also Marlene Spanger & May-Len Skilbrei, “Exploring Sex for Sale: Methodological Concerns” in Marlene Spanger & Vol. 40 Windsor Review of Legal and Social Issues 105 there has been a growing movement to ensure sex workers play a role in law, policy, and social reform around sex work because of their unique insight and experience.179 As a result, there is a growing body of scholarly and community based empirical research about sex work in Canada, focused on “what adult sex workers themselves say about their lives.”180 Almost all the empirical work about prostitution in Canada now uses the term “sex worker”, usually without defining either “sex work” or “sex workers”. “Sex work” is used but not defined in some studies.181 In other studies, it is defined simply as the exchange of sex for money,182 or used interchangeably with “prostitution”.183 Where the term “sex work” is used in studies but not defined, or used interchangeably with the word “prostitution”, attending to subject characteristics 2019 CanLIIDocs 3714 helps identify whose subject positions are and are not accounted for. Most recent studies conducted about sex work in Canada consider only adults.184 Most
May-Len Skilbrei, eds, Prostitution Research in Context: Methodology, Representation and Power (New York: Routledge, 2017) 1; Carol Harrington, “Collaborative Research with Sex Workers” in Marlene Spanger & May-Len Skilbrei, in Marlene Spanger & May-Len Skilbrei, eds, Prostitution Research in Context: Methodology, Representation and Power (New York: Routledge, 2017) 85. 179 See e.g. Shari Allinott et al, Voices for Dignity: A Call to End the Harms Caused by Canada’s Sex Trade Laws (Vancouver: Pivot Legal Society, 2004); Mary Childs et al, Beyond Decriminalization: Sex Work, Human Rights and a New Framework for Law Reform (Vancouver: Pivot Legal Society, 2006); Pivot Report, supra note 11. 180 Chris Bruckert & Frédérique Chabot, “Challenges: Ottawa Area Sex Workers Speak Out” (December 2010) at 7, online (pdf): Rainbow Health Ontario
106 Windsor Review of Legal and Social Issues Vol. 40 scholarly empirical work is also limited to subjects who are legally able to work in Canada.185 In a study described as the “largest research project in Canada examining sex work and prostitution law,”186 the sample of 218 participants included the following characteristics:
Recruitment criteria for participating in the sex worker study included being 19 years of age or older,187 being legally able to work in Canada and having received money in exchange for sexual services on at least 15 different occasions in the last 12 months. Sexual services were defined as including, necessarily but not exclusively, direct physical contact between the worker and a client.188 2019 CanLIIDocs 3714
Qualitative Health Research 966 at 967; Benoit, “Sex Workers’ Views”, supra note 43; Benoit, “Would you Think”, supra note 41. 185 Although at least one community-based study focuses on issues faced by migrant sex workers, see e.g. Migrant Sex Workers Project, online: Migrant Sex Workers
Attending to the activities included as “sex work” is also important in evaluating whether that activity is likely to fall within the legal definition of “prostitution” or “sexual services for consideration” in Canada.189
V. RE(DE)FINING PROSTITUTION AND SEX WORK
Conceptual clarity around the word “prostitution” and the term “sex work” is essential in evaluating the constitutionality and effectiveness of Canada’s existing prostitution laws and considering potential policy alternatives. It also more clearly identifies differently situated stakeholders and the problems to which they suggest law and policy ought to respond. The activity of exchanging sexual services for consideration has been 2019 CanLIIDocs 3714 legally defined in Canada as “prostitution”, and prostitution is now illegal in Canada. Canada’s current criminal laws applicable to prostitution govern the activity of prostitution whenever and however it occurs. The new legislative regime would apply to include every circumstance in which sexual services are exchanged for consideration. This would include situations in which sexual services are exchanged for consideration in the absence of consent or in circumstances that would also qualify as human trafficking.190 Indeed, an intention to directly address human trafficking informed the new legislative scheme.191 In a 2007 Report, the House of Commons Standing Committee on the Status of Women recommended that Canada implement legislation targeting
189 See e.g. Bruckert & Chabot, supra note 180 at 9 (where the subject sex workers included exotic dancers, who likely do not fit within the definition of prostitution of sexual services for consideration). 190 Criminal Code, supra note 1, s 286.1 (this applies to the obtaining of sexual services for compensation). 191 See e.g. Technical Paper, supra note 71 at 4 (“[c]ommercial enterprises in which prostitution takes place … create opportunities for human trafficking for sexual exploitation to flourish”). See also Technical Paper, supra note 71 at 12 (“in April 2014, the Council of Europe recommended that member and observer states, which includes Canada, consider criminalizing the purchase of sexual services, as the most effective tool for preventing and combating human trafficking”).
108 Windsor Review of Legal and Social Issues Vol. 40 the demand for prostitution in an effort to combat trafficking in human beings,192 which has been described as a supply system for prostitution.193 The term “sex work” is used to refer to the activity of prostitution when undertaken by a subset of prostitution participants, and often to activities falling outside of the legal definition of prostitution. From its inception, the term “sex work” has sought to exclude anyone who has been forced to exchange sexual services for compensation. One of the political aims of the sex workers’ rights movement is to distinguish “sex work” from “human trafficking”. Recent definitions in community based and scholarly work further circumscribe which prostitution participants are included in rights’ claims and in empirical work.194 Empirical work about sex work sometimes includes evidence about examples of sex work that would fall outside of the legal definition of “prostitution”, 2019 CanLIIDocs 3714 including for example exotic dancing or webcam performances. Calls for the removal of all criminal sanctions directly aimed at adult prostitution and challenges to the constitutionality of Canada’s existing criminal prostitution laws are grounded in claims about the effects of those laws on sex
192 Turning Outrage into Action, supra note 148 at 12–16. 193 Sheila Jeffreys, The Industrial Vagina: The Political Economy of the Global Sex Trade (Abingdon: Routledge, 2009) at 153–55. 194 Not all prostitution participants who might it a descriptive definition of sex work bearing these characteristics agree with the normative claim that the activity be understood or treated as work, or with the political goal of decriminalization. Some adults, for example, identify as survivors. While having engaged in the activity Amnesty defines as sex work, those who identify as survivors rather than sex workers tend to promote abolition of prostitution rather than decriminalization. Both Amnesty and Pivot acknowledge that “not everyone who sells or trades sex identifies as a sex worker”: Amnesty International, supra note 11 at 3–4; Pivot Report, supra note 11 at 9. For perspectives of those who instead identify as prostituted women and survivors of exploitation, see e.g. Rachel Moran, Paid For: My Journey Through Prostitution (New York: WW Norton, 2015); Caroline Norma & Melinda Tankard Reist, eds, Prostitution Narratives: Stories of Survival in the Sex Trade (Victoria: Spinifex Press, 2016); Julie Bindel, The Pimping of Prostitution: Abolishing the Sex Work Myth (London, UK: Palgrave MacMillan, 2017). See also Raymond, supra note 44 at xliii (where the author argues that sex workers be distinguished from survivors on the basis that the former advocate for the sex industry while the latter struggle against it); SPACE International “Home Page”, online: SPACE International
195 Anwar, supra note 7 (Notice of Application Re: Constitutionality of SS.286.2, 286.3 and 286.4 of the Criminal Code at p 2). 196 The applicants, owners of an escort agency, adduced legislative fact evidence from two expert witnesses about the effect or potential effect of the new criminal provisions on adults 19 years of age or older; legally able to work in Canada; and who had not been trafficked or coerced by a third party into exchanging sexual services for payment. See Anwar, supra note 7 (Transcript of Chris Atchison and Andrea Sterling). The applicants had originally been charged under trafficking offences but those charges were dropped concurrent with the agreement to proceed with a pretrial application to determine constitutionality. 197 See Anwar, supra note 7 (Transcript of Maddy Coy). 198 The courts in Bedford did not consider the question of how a court should respond to a challenge of impugned laws that in some respects operate in a constitutionally proper manner and in other respects violate the rights of some who are affected by the legislation, see Alan N Young, “Proving a Violation: Rhetoric, Research and Remedy” (2014) 67 SCLR (2d) 617 at 618. 199 Dempsey, supra note 15 at 63.
110 Windsor Review of Legal and Social Issues Vol. 40 understanding of whose interests and rights are and are not reflected in empirical research and evidence about sex workers and in arguments about sex workers’ rights will be required. Beyond the implications for existing or future constitutional challenges, conceptual clarity around the word “prostitution” and the term “sex work” has the potential to move discourse away from the master narratives currently employed in existing debates about the commercial exchange of sexual acts200 to permit a more nuanced evaluation of the problems associated with both prostitution and sex work,201 and bring to question how the law should, could, or may respond to them.202 For example, understanding “prostitution” as an activity and “sex work” as that activity (and others) when engaged in under certain conditions would help to alleviate claims that “sex work” is conflated or 2019 CanLIIDocs 3714 equated with “human trafficking”.203 It would permit legal decision makers to
200 See Vanessa Munro, Law and Politics at the Perimeter Re-evaluating Key Debates in Feminist Theory (Portland, Oregon: Hart Publishing, 2007) at 35–39 (where the author argues that postmodern approaches to feminism recognize that no one narrative fits the experience of every woman and, as such, master narratives are not sufficient or relevant). See also Munro & Della Giusta, supra note 31 at 6 (where the authors identify the need to move beyond polarized perspectives about the commercial exchange of sex, especially “when presented as an abstract position that claims universal applicability to all women and all commercial sex”). 201 Lise Gotell, “Litigating Feminist ‘Truth’: An Antifoundational Critique” (1995) 4:1 Soc & Leg Stud 99 at 123. See also Carson & Edwards, supra note 126 at 76. Recent work in feminist discourse theory identifies that “as researchers we have work to do in ensuring that we do not simply buy into certain problem representations without reflecting on their origins, purposes and effects.” See also Josefina Erikson, “The Various Problems of Prostitution — A Dynamic Frame Analysis of Swedish Prostitution Policy” in Maddy Coy, ed, Prostitution, Harm and Gender Inequality: Theory, Research and Policy (Abingdon: Ashgate Publishing, 2012) 159 at 160 (where the author uses the example of the Swedish prostitution policy to show how disagreements over the problem of prostitution make some solutions desirable and others unlikely). 202 See Munro & Giusta, supra note 31 at 4 (where the authors characterize the policy challenges as “ideological disagreements over whether to respond to the individual experience of involvement in prostitution or the structural significance of men’s commodification and consumption of female sexuality”); Vermeulen & Peršak, supra note 35 at 315 (where the authors identify the “paralysing dichotomy between interpretations of the prostitution phenomenon through opposed normative or moral values and opinions” and challenge this “flawed research tradition”). 203 See Pivot Report, supra note 11 at 65–74 (where the authors discuss distinctions between sex work and trafficking, including policy). Vol. 40 Windsor Review of Legal and Social Issues 111 more directly contend with questions about whether or how the law might or ought to respond differently to different instantiations of prostitution.204 It also has the potential to ground more nuanced theoretical and empirical research that might better account for the experiences of all prostitution participants and the effect of prostitution and prostitution policies on them, as well as on the communities in which they live, and society at large.
VI. CONCLUSION
Constructing a legislative model at the intersection of choice and inequality may be one of the great challenges now facing those tasked with legal responses to the problems associated with the commercial exchange of sex. Constitutional 2019 CanLIIDocs 3714 challenges to Canada’s current legislative approach to prostitution will need to contend with the competing subject positions of differently situated vulnerable and marginalized individuals and groups, and differing conceptions of equality, security of the person, and dignity.205 Removing all criminal sanctions directly applicable to adult prostitution and placing responsibility for the consequences of participation in prostitution on each individual seller may not reduce the harm or potential for harm for all who sell or are sold, or increase the wellbeing of all women and girls.206 Legal decision makers should pay close attention to whose interests and experiences are and are not reflected in empirical research and in legal arguments incorporating rights claims.207 As Raymond notes: “[t]he legal
204 This is perhaps the most important question, and one that certainly bears further consideration. Is it possible to respond to both the problems of prostitution and the problems of sex work without choosing as between them and the policy interventions now proposed? 205 Indeed, a Charter challenge may not be the best place to meaningfully contend with complex issues involving multiple stakeholders with potentially competing interests and rights claims. 206 In this article, I have focussed on the equality concerns of women and girls. These are the equality concerns that undergird Canada’s new prostitution laws. Men, boys, and transgender individuals also exchange sexual services for consideration in Canada. While I have not addressed concerns specific to them here, the conceptual clarity I recommend could better contend with their individual and structural concerns about prostitution and sex work and reflect their unique experiences. 207 Empirical investigation into the impact of the PCEPA will be relevant to Parliament’s eventual review of Canada’s prostitution policy and to future Constitutional challenges. There
112 Windsor Review of Legal and Social Issues Vol. 40 status of prostitution is essentially an ethical and political inquiry and cannot be solved by reducing it to a pragmatic and economic calculus that is value- neutral.”208 Brison adds: “… we need to consider whether one woman’s liberating (and lucrative) insurrectionary act may contribute to another’s victimization and, if so, how such conflicts ought to be addressed.”209 Attending to how the word “prostitution” and the term “sex work” are used and defined is an essential first step on the path towards resolving such conflicts. 2019 CanLIIDocs 3714
are significant limitations on evidence about the effectiveness of policy addressing the commercial exchange of sex. A Scottish Government report recently suggested that “evidence on interventions in this area does not, on its own, provide an independent source for the determination of policy and/or legislation”. See Margaret Malloch, Laura Robertson & Emma Forbes, Evidence Assessment of the Impacts of the Criminalisation of the Purchase of Sex: A Review (Edinburgh: The Scottish Government, 2017) at 2. See generally Eileen Munro, “Evidence-Based Policy” in Nancy Cartwright and Eleonora Montuschi, eds, Philosophy of Social Science: A New Introduction (Oxford: Oxford University Press, 2015) 48 (where the author discusses the limits of empirical research on policy making). 208 Raymond, supra note 44 at 18. 209 Susan J Brison, “Contentious Freedom: Sex Work and Social Construction” (2006) 21:4 Hypatia 192 at 199. See also Margaret Jane Radin, Contested Commodities (Cambridge: Harvard University Press, 1996) at 123–30 (for a discussion of what the author calls the double bind where both commodification and noncommodification may be harmful). Vol. 40 Windsor Review of Legal and Social Issues 113
FREEDOM OF ASSOCIATION AND INDIGENOUS GOVERNANCE
Kate Scallion*
I. INTRODUCTION
Could a First Nation use section 2(d) of the Canadian Charter of Rights and Freedoms to assert or protect Indigenous governance?1 While section 35 of the Constitution Act, 1982 grounds the vast majority of Aboriginal law jurisprudence, it should not be the only section that affords constitutional protection to Indigenous governance rights.2 Just as section 35 dominates
Aboriginal law jurisprudence, labour law dominates section 2(d) jurisprudence. 2019 CanLIIDocs 3714 Freedom of association seems to be a less robust right than the other fundamental freedoms protected by section 2 because of its nearly exclusive application in one area of law. This paper seeks to determine what broad rights are contained in the section 2(d) “basket” of rights and how they can be employed in new contexts to give better constitutional protections to Indigenous peoples and their governance rights, but also to Canadians more generally. The overarching inquiry of this paper is if, and how, the right to freedom of association could be used in the context of Indigenous governance. Part 1 of this paper will explore and define the basic right to freedom of association, as well as what protections fall under section 2(d) and the section may be violated. Part 2 will look at how freedom of association would potentially operate in the context of Indigenous governance. First, possible applications of this right and its pros and cons will be discussed, including using section 2(d) for nations or
* Kate Scallion is an LLM candidate at the Schulich School of Law, Dalhousie University. Thank you to Professors Constance MacIntosh and Naiomi Metallic at the Schulich School of Law for their encouragement in writing this paper. Thank you also to the peer reviewer for their insightful feedback.
1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act (UK), 1982, c 11, s 2(d) [Charter]. 2 Being Schedule B to the Canada Act (UK), 1982, c 11, s 35.
114 Windsor Review of Legal and Social Issues Vol. 40 bands that the federal government has refused to recognize, associations of non- status Indians, grassroots level associations delivering services, and associations exercising Aboriginal rights. Second, particular advantages of section 2(d) will be assessed, including avoiding section 35, access to collective bargaining rather than being tethered to the duty to consult, and extending the application and framework of section 2(d) beyond labour law. Third, disadvantages of using s 2(d) will be considered, including the possible detriments of collective bargaining as opposed to the duty to consult, a more limited scope of protection under section 2(d), reticence to accept new approaches to Charter rights, and the potential imposition of additional hurdles necessary prove a claim. Ultimately, this paper will show that the right to freedom of association may be a helpful tool to assert or protect Indigenous governance; however, using 2019 CanLIIDocs 3714 section 2(d) in this way would extend its application beyond the labour law context, so courts may be reluctant to extend the protections offered by section 2(d) beyond the labour context. Further, freedom of association may not offer enhanced protection of Indigenous governance rights in comparison to section 35.
II. PART ONE: THE BASIC RIGHT TO FREEDOM OF ASSOCIATION a. What is Freedom of Association?
Freedom of association, a fundamental freedom protected by section 2(d) of the Charter, is the right that protects the ability of individuals to come together and act collectively in furtherance of common goals.3 The protection of freedom of association seems to be drawn primarily from the labour context, which is, in part, demonstrated by the right historically being linked with freedom of assembly, which protects activities such as picketing. International Conventions such as the Universal Declaration on Human Rights protect the right to “freedom of peaceful assembly and
3 Mounted Police Association of Ontario v Canada (AG), 2015 SCC 1 at para 5, [2015] 1 SCR 3 [MPAO]; Reference re Public Service Employee Relations Act (Alta), [1987] 1 SCR 313 at 334, 38 DLR (4th) 161 [Alberta Reference]. Vol. 40 Windsor Review of Legal and Social Issues 115 association,”4 while the International Covenant on Civil and Political Rights protects “the right to freedom of association with others, including the right to form and join trade unions for the protection of [one’s] interests.”5 The Canadian Bill of Rights, a precursor to the Charter, also explicitly links the protection of freedom of association with the labour movement, protecting “freedom of assembly and association.”6 The Charter, in contrast, separated the protections for assembly and association in two different provisions. This was done, as recorded in the committee debates on the Constitutional amendment and the creation of the Charter, to allow each right to exist as separate and distinct rights, which serves to give each right greater application beyond the labour context, or any other specific context.7 The fact that an amendment proposing section 2(d) be changed 2019 CanLIIDocs 3714 to “the right to freedom of association including the freedom to organize and bargain collectively” was rejected reinforces that the framers of the Constitution envisioned section 2(d) applying beyond the labour context.8 Although the debates show that the amendment was proposed with the aim of further bolstering protection for workers, it was rejected because the original formulation of section 2(d) was “on a broader perspective … more in the interests of the workers,”9 as it provides better protection for workers, as well as because the framers worried those changes would “diminish the general meaning” of freedom of association.10
4 Universal Declaration of Human Rights, GA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 71, Art 20(1). 5 International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171, art 22(2) (entered into force 23 March 1976, accession by Canada 19 May 1976). 6 Canadian Bill of Rights, SC 1960, c 44, s 1(e). 7 Senate, House of Commons, Special Joint Committee on the Constitution of Canada, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, 32-1, No 15 (28 November 1980) at 12 (JP Nelligan) [Minutes, November 1980][Special Joint Committee No 15]. 8 Senate, House of Commons, Special Joint Committee on the Constitution of Canada, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, 32-1, No 43 (22 January 1981) at 71–72 (Mackasey) [Minutes, January 1981] [Special Joint Committee No 43]. 9 Ibid at 72. 10 Ibid at 70 (Kaplan).
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Despite the framers of the Constitution advocating for a broad and purposive application of freedom of association, in Canadian jurisprudence section 2(d) has been contemplated primarily within the labour law context.11 In labour law, the right to freedom of association includes the right to the process of collective bargaining and the right to strike.12 It is unclear whether or not those rights extend beyond the labour context to other forms of association. Activities that may be considered strike activities, such as secondary picketing or boycotts, tend to be characterized as rights protected under section 2(c) of the Charter, which protects the right to freedom of peaceful assembly, or s 2(b) of the Charter, which protects the right to freedom of expression.13 Because of the limited context in which section 2(d) has been applied, courts have yet to determine how far the associated rights protected within the labour regime 2019 CanLIIDocs 3714 extend beyond that context, but at the very least, section 2(d) protects the basic right of individuals to come together and act collectively in the peaceful pursuit of a collective goal.
11 Note: even though section 2(d) was initially seen as including the right to collective bargaining, the Supreme Court did not actually give collective bargaining constitutional protection under section 2(d) until 2007 in Health Services and Support - Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27 at para 2, [2007] 2 SCR 391 [BC Health Services]. 12 BC Health Services, supra note 11 at para 19; Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 at para 3, [2015] 1 SCR 245 [SFL]. 13 See RWDSU, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd, 2002 SCC 8 at paras 30–32, [2002] 1 SCR 156 [Pepsi-Cola] (secondary picketing was classified as an expressive activity and protected under s 2(b). Although not raised in the labour context, student “strikes” against increased tuition fees in Quebec were characterized by courts as “boycotts” rather than “strikes,” in part because of the lack of contractual framework to govern strikes in such a setting). See also Jourdain c Université du Québec à Rimouski (UQAR), 2012 QCCS 1781 at para 26, 2012 CarswellQue 4130 (boycotts, as discussed in Pepsi-Cola, are protected under section 2(b) and student picket lines are protected under both sections 2(b) and (c); the defendant in Morasse v Nadeau Dubois, 2016 SCC 44 at para 4, [2016] 2 SCR 232 organized and promoted many of those student protests and boycotts, though the Supreme Court did not discuss freedom of association in that particular decision; Charter, supra note 1, ss 2(b), 2(c). Vol. 40 Windsor Review of Legal and Social Issues 117
b. What Rights does Section 2(d) Protect?
In the labour law context, freedom of association protects the associated rights of collective bargaining and the right to strike, as noted previously. The Supreme Court of Canada (the “Supreme Court”) has also affirmed that freedom of association protects political association14 and commercial association,15 in addition to the protection of trade unions. Section 2(d) has not been explored in depth beyond the labour law context, but the minimum protection afforded by section 2(d), in every context, is that of the right to freely associate. In Mounted Police Association of Ontario v Canada (AG) (“MPAO”), the Supreme Court reviewed the content of freedom of association, relying heavily on Chief Justice Dickson’s dissent in Alberta Reference to flesh out what 2019 CanLIIDocs 3714 section 2(d) encompasses.16 The so-called constitutive approach is the most narrow and states that freedom of association protects “the bare right to belong to an association.”17 The derivative interpretation of freedom of association protects “not only the right to associate, but also the right to associational activity that specifically relates to other constitutional freedoms.”18 A purposive approach includes the rights protected under both the constitutive and derivate approaches, and encompasses “collective activity that enables ‘those who would otherwise be vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict.’”19 Section 2(d) also includes the right not to associate, or the right to be free from compelled association.20 As the Supreme Court also notes in MPAO,
14 Libman v Quebec (AG), [1997] 3 SCR 569 at paras 36–37, 151 DLR (4th) 385 [Libman]. 15 Canadian Egg Marketing Agency v Richardson, [1998] 3 SCR 157 at para 40, 166 DLR (4th) 1 [Egg Marketing] (this decision is significant in that it expanded section 2(d) protection to corporations, because the national egg marketing scheme was considered to be a question of national importance). 16 MPAO, supra note 3 at para 51; Alberta Reference, supra note 3 at 362–67. 17 MPAO, supra note 3 at para 52. 18 Ibid at para 53. 19 Alberta Reference, supra note 3 at 366, as cited in MPAO, supra note 3 at para 54. 20 Lavigne v OPSEU, [1991] 2 SCR 211 at 237, 3 OR (3d) 511 [Lavigne]. See also Sawridge Band v R, [1996] 1 FC 3, 1995 CanLII 3521 (FC) [Sawridge] (the band argued in the
118 Windsor Review of Legal and Social Issues Vol. 40 despite freedom of association being primarily contemplated and developed within the labour context, it was not formed exclusively by that context, but “has its roots in the protection of religious minority groups.”21 The majority decision in MPAO, the dissent in Alberta Reference, and the committee debates on the Charter all indicate that section 2(d) was intended to have broad application and extend its protective reach beyond the labour context. This is particularly evident in Dickson CJC’s dissent in MPAO, which as Rita Khullar and Vanessa Cosco point out, “focuse[s] on the relationship between marginalized individuals and those who are more powerful” in the articulation of the values underlying freedom of association.22 Section 2(d) does not necessarily protect the association itself or even its objects or purposes. In Canadian Egg Marketing Agency v Richardson (“Egg 2019 CanLIIDocs 3714 Marketing”), the Supreme Court determined that while a section 2(d) right exists for economic association, it does not protect activities in which that association engaged, even if those activities are foundational to the purpose of the association.23 However, since Egg Marketing was decided, the scope of protections under section 2(d) have been extended within the labour context so the limitations expressed in Egg Marketing may no longer be good law in terms of the protections offered by section 2(d) in other contexts. According to the court in MPAO, section 2(d) does protect an association’s activities, with some obvious exceptions such as unlawful activities, violent activities or associations, and activities that seek to enhance social imbalances.24
alternative, that the Bill C-31 amendments to the Indian Act violated their section 2(d) rights on the basis that it imposed additional members onto the band without their consent and thus violated their right to freely associate. The Native Council of Canada, an intervener in the case, argued that section 2(d) does not include the right to “exclude one’s kind from statutory benefits, from Charter protection” at para 174. The trial judge noted that the band seemed to abandon their section 2(d) argument but found no violation of section 2(d) regardless. In the subsequent proceedings arising from this decision, section 2(d) was not argued). 21 MPAO, supra note 3 at para 56. 22 Rita Khullar & Vanessa Cosco, “The SCC Reimagines Freedom of Association in 2015” (2016) 25:2 Const Forum 27 at 35. 23 Egg Marketing, supra note 15 at para 113. 24 Ibid; MPAO, supra note 3 at para 59. Vol. 40 Windsor Review of Legal and Social Issues 119
Despite the heavy reliance on labour law to define what freedom of association protects and how far its protection extends, the Supreme Court ventures to articulate both the purpose and limits of s 2(d) generally. According to the Supreme Court, one of the fundamental purposes of section 2(d) is “to protect the individual from ‘state-enforced isolation in the pursuit of his or her ends’”25 and “functions to protect individuals against more powerful entities.”26 The core of freedom of association “empowers vulnerable groups and helps them work to right imbalances in society. It protects marginalized groups and makes possible a more equal society.”27 In sum, freedom of association is the right for individuals to act in association with others in pursuit of collective goals, and particularly those goals that seek to address power imbalances and promote substantive equality. Within 2019 CanLIIDocs 3714 the labour context, this includes the right to a process of collective bargaining and the right to strike. Outside the labour context, it may include the right to the process of collective bargaining,28 but it is unlikely to extend to the right to strike.29
25 Alberta Reference, supra note 3 at 365, cited in MPAO, supra note 3 at para 58. 26 MPAO, supra note 3 at para 58. 27 Ibid. 28 David J Doorey, “Graduated Freedom of Association: Worker Voice Beyond the Wagner Model” (2013) 38:2 Queen’s LJ 511 at 511 (this paper espouses that it is necessary to assume that a minimum right to the process of collective bargaining exists for all associations. This assumption relies on the premise stated in the Alberta Reference in dissent and adopted by the Supreme Court in MPAO that a fundamental purpose of section 2(d) is to enable individuals to act collectively to pursue equality. If section 2(d) seeks to redress power imbalances, then it must also include a way for associations to have meaningful dialogue—this dialogue would fall under the protection given by a process of collective bargaining. It is possible that, like procedural fairness, the content of collective bargaining is assessed on a case-by-case basis and thus may vary depending on the particular circumstances of a case. That prospective analysis is beyond the scope of this paper). 29 See generally Canada Labour Code, RSC, 1985, c L-2 at ss 87.2, 88.1 & 89 [CLC] (protection for the right to strike to exist beyond the labour context is unlikely for a number of reasons: first, within the labour context, striking is highly regulated and must comply with statutory requirements; second, the corollary of the right to strike is the right to lock out; third, there is no equivalent to a lock out beyond the labour context; fourth, one of the primary purposes of striking or locking out is to impose some form of economic retribution (that is, because productivity is reduced or because costs increase) on the other party, and it is unclear if or how strikes outside of the labour context would have any such effect; and fifth, some
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c. How is Freedom of Association Violated?
The government may not impede the formation of an association, nor may it interfere with its activities unless such interference can be justified under section 1 of the Charter.30 Outside of labour law, section 2(d) is infringed if government action prevents individuals from forming an association and working together in pursuit of a collective goal. Within the labour context, section 2(d) can be infringed by interfering with the formation of an association31 or by causing “substantial interference” with meaningful collective bargaining or the right to strike.32 A substantial interference includes activities like enacting legislation that grants employers the right to unilaterally make changes affecting bargaining issues, such as contracting out arrangements and job security programs;33 2019 CanLIIDocs 3714 prohibiting employees from participating in work stoppages;34 enacting legislation that limits the formation of independent associations;35 or engaging in bad faith bargaining.36 In the Indigenous governance context, a violation of section 2(d) could result in a number of circumstances. For instance, it can result from refusing to recognize a First Nation, such as when the federal government did with the Lubicon of Alberta; refusing to recognize, or interfering with, the activities of an association that works on behalf of, or provides services to, Indigenous peoples, for example, when it was argued that an organization like Mi’gmawei
strike activities such as picketing are protected under sections 2(b) or (c) and therefore would not need additional protection under section 2(d)). 30 Note that the freedom not to have one’s associational activities infringed is different from the right to have those same activities protected under section 2(d). 31 For example, by interfering with a union’s attempt to organize or receive certification as the bargaining agent for a group of workers. 32 BC Health Services, supra note 11 at para 93 (the test for “substantial interference” requires first “an inquiry into the important of the matter affected to the process of collective bargaining,” and second, “an inquiry into the manner in which the measure impacts on the collective right to good faith negotiation and consultation”). 33 Ibid at para 130. 34 SFL, supra note 12 at para 75. 35 MPAO, supra note 3 at para 121. 36 British Columbia Teachers’ Federation v British Columbia, 2016 SCC 49, [2016] 2 SCR 407 rev’g 2015 BCCA 184, 71 BCLR (5th) 223; rev’g 2014 BCSC 121, 54 BCLR (5th) 286. Vol. 40 Windsor Review of Legal and Social Issues 121
Mawiomi Secretariat did not have standing to advance Aboriginal and treaty rights;37 or refusing to recognize, or interfering with, the activities of an association of non-status Indians working together to collectively pursue the entitlement of rights such, as those that could be recognized under Daniels v Canada (Indian Affairs and Northern Development).38
III. PART TWO: FREEDOM OF ASSOCIATION IN THE CONTEXT OF INDIGENOUS GOVERNANCE a. Potential Applications
While Indigenous peoples have been reluctant to embrace the Western structure of labour relations, it does not mean that they are precluded from using section 2019 CanLIIDocs 3714 2(d) to further collective goals or to attempt to address historic and continuing inequality.39 There are at least four potential applications for section 2(d) in an Indigenous governance context: (i) First Nations or bands that the federal government has refused to recognize; (ii) associations of non-status Indians; (iii) associations formed at a grassroots level that deliver essential services, such as Friendship Centres, among others; and (iv) associations of Indigenous peoples
37 Martin v Province of New Brunswick and Chaleur Terminals Inc, 2016 NBQB 138 at paras 48–51, 269 ACWS (3d) 401 (the federal government tried to argue that the Mi’gmawei Mawiomi Secretariat (the “MMS”) lacked standing to bring forward the claim on behalf of the Listuguj, Gesgapegiac, and Gespeg communities. The New Brunswick Court of Appeal (the “NBCA”) determined that the MMS did have standing based on the “Political Accord Between the Governing Councils Of The Mi’gmaq of Listuguj, Gesgapegiag and Gespeg,” which was formed in part “to permit common political action and joint venture”). 38 See Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 SCR 99 [Daniels]. 39 Maggie Wente, “NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees' Union and Communication Energy and Paperworkers of Canada v. Native Child and Family Services of Toronto” (2011) 10:1 Indigenous LJ 133 at 137–38. See also Wsáneć School Board v BC Government and Service Employees’ Union, 2017 FCA 210 aff’g 2016 CIRB 838 [WSB] (this concern is also reflected in WSB where the Board sought to have a separate bargaining unit certified for Indigenous employees because they were concerned the BC Government and Service Employees’ Union (the “BCGEU)” could not adequately represent their interests. The Federal Court of Appeal dismissed the application on judicial review on the basis that it was premature and there was no indication that the BCGEU could not represent the interests of Indigenous members adequately).
122 Windsor Review of Legal and Social Issues Vol. 40 exercising, or attempting to exercise, Aboriginal rights. These scenarios and their possible drawbacks are addressed below.
i. Nations or Bands that the Federal Government has Refused to Recognize
Under section 2 of the Indian Act, a First Nation is a band if it meets one of the following three criteria:
(a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951, (b) for whose use and benefit in common, moneys are held by Her 2019 CanLIIDocs 3714 Majesty, or (c) declared by the Governor in Council to be a band for the purposes of this Act.40
The Indian Act also gives the government discretion to recognize a band, or not, if the band does not have a land base or government trust funds.41 This would affect First Nations who are not covered by a treaty, like the Lubicon of Alberta.42 When the federal government decided to recognize the Woodland Cree Band instead of the Lubicon Nation, the Lubicon could have attempted a Charter challenge under section 2(d) to enforce the recognition of their collective rights as an association. The band could have argued that their freedom of association had been violated because the government refused to recognize them as an association or grant them the same protections offered to other associations. Prior to the formation of the Woodland Cree Band, the Lubicon had been
40 Indian Act, RSC, 1985, c I-5, s 2(1) [Indian Act]. 41 John Olthuis, Nancy Kleer & Roger Townshend, Aboriginal Law Handbook, 4th ed (Toronto: Thompson Reuthers, 2012) at 193–201 (the authors point out that the federal cabinet has created a number of new bands this way, though it has also abused its power to create bands, as in the case of the Lubicon). 42 Ibid. Vol. 40 Windsor Review of Legal and Social Issues 123 negotiating with the federal government and the government of Alberta for a number of years attempting to come to a land claims agreement. The Lubicon had never signed a treaty with either the British or Canadian governments and thus did not have treaty rights or an established land base to which their title was recognized. A Charter challenge may have succeeded for the Lubicon on the basis that, by refusing to acknowledge the band as an association, section 2(d) was violated because the government effectively interfered with the formation of the association. If that argument failed, then the Lubicon could have perhaps succeeded on the basis that section 2(d) was violated because its activities as a band, including governance activities, were being substantially interfered with by the government’s non-recognition of their right to undertake them. That said, 2019 CanLIIDocs 3714 the specific context surrounding the Lubicon Nation make it doubtful that a section 2(d) challenge would succeed. As mentioned, the Nation had been negotiating with the federal government regarding a land settlement for several years prior to the establishment of the Woodland Cree Band. Although some perceived the recognition of the Woodland Cree Band as a retaliatory measure,43 the federal government continued negotiations with the Lubicon after the Woodland Cree Band was formed. This demonstrates that the federal government did recognize the Lubicon as an association and could considered to have participated in some form of collective bargaining with the Nation. An additional barrier in this particular example is the timeframe in which the Woodland Cree Band was established. The federal government officially recognized the Woodland Cree Band in August 1989. It is unlikely that a section 2(d) challenge would have succeeded based on the narrow approach taken to freedom of association at the time. The original labour trilogy was decided in
43 Jeff Morrow, “Woodland Cree ‘Rejected All Around’ Says New Chief” (1990) 7:26 Windspeaker 3 at 3, online:
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1987 and it rejected accepting collective bargaining as a right constitutionally protected under section 2(d). However, now that the Supreme Court has broadened the scope of section 2(d) protections, a First Nation in a similar situation today would have a greater chance of success with a section 2(d) challenge if the government refuses to recognize them as an association acting to pursue collective goals. In MPAO, the court explicitly included “the right to join with others in the pursuit of other constitutional rights” as falling under the protection of section 2(d).44 The drawback to a Charter challenge in this type of circumstance is that the First Nation’s activities may be determined to go beyond even the broader scope of the section 2(d) umbrella and thus may not be protected. For example, if governance rights or activities are considered distinct from those activities 2019 CanLIIDocs 3714 protected by freedom of association—that is, those activities undertaken to pursue a collective goal to redress inequality between two entities—a First Nation may not be able to use section 2(d) to assert those governance rights. Section 2(d) may be a way to open the door to protect governance activities, but it may not be successful in every case.
ii. Associations of Non-Status Indians
Until the Daniels v Canada (Indian Affairs and Northern Development) (“Daniels”) decision in 2016, Métis and non-status Indians historically fell into a “jurisdictional wasteland”, unable to benefit from protections or rights granted under the Indian Act.45 The decision granted non-status Indians and Métis protection under section 91(24) of the Constitution Act, 1867,46 affirmed that the Crown owes them a fiduciary duty, and affirmed that they have the right to be consulted and negotiated with on a collective basis. It remains unclear how Daniels is changing rights for non-status Indians as the federal government has not made any announcements regarding how they
44 MPAO, supra note 3 at para 66. 45 Daniels, supra note 38 at para 14. 46 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91(24), reprinted in RSC 1985, Appendix II, No 5. Vol. 40 Windsor Review of Legal and Social Issues 125 intend to implement the decision since it was published,47 but an approach under section 2(d) shows how associations of non-status Indians could allow these individuals to establish and benefit from the Daniels decision in a tangible way. For example, section 2(d) could potentially force either the government and First Nations, or both, to acknowledge the constitutional rights of non-status Indians under section 91(24) of the Constitution Act, 1867 on the basis that failure to recognize an association working to pursue collective goals violates section 2(d), and an association of non-status Indians are entitled to consultation and negotiation—two protections offered by collective bargaining.48 Section 2(d) does not impose positive obligations, but it does require acknowledgement and recognition of an association and its activities. Perhaps the simple act of recognition could be enough to precipitate change that would 2019 CanLIIDocs 3714 help non-status Indians gain more rights and thus receive substantively equal treatment. Section 2(d) may not be a powerful tool, but it can, at minimum, ensure that issues for associations of non-status Indians are put forward. Failing to recognize such an association would violate the Charter in a way that would not likely be justifiable under section 1. The bigger obstacle is arguing that the governance activities of such an association would also be protected by section 2(d).
47 “Minister Bennett Welcomes the Supreme Court of Canada Decision on CAP/Daniels Case” (14 April 2016), Government of Canada, online:
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iii. Grassroots-Level Associations Delivering Essential Services
There are several examples of organizations, like Friendship Centres, that have formed at the grassroots level to provide services to Indigenous peoples.49 One concern expressed with these organizations exercising governance rights through service delivery is that it is not clear what would occur if the government refused to recognize them or their right to govern in a particular sector.50 For example, what would the result be if an association has been delivering education or health services, but the government decides they can no longer deliver such services because they lack statutory authorization? In that case, 2019 CanLIIDocs 3714 section 2(d) could provide a remedy in that it would be unconstitutional not to recognize the association or its activities. However, like non-status Indians, the bigger challenge would be proving that the activities provided by such an association are also guaranteed under section 2(d) and thus also require recognition and protection.
iv. Associations Exercising Aboriginal Rights
The right to freedom of association could help associations and individuals exercise communal Aboriginal rights such as hunting or fishing. In the case of R v Bernard, the defendant argued that he was exercising an Aboriginal right to hunt arising from the Mi’kmaq nation as a community, rather than a particular band.51 The Supreme Court of New Brunswick held that Bernard was not a member of the “original rights-bearing Mi’kmaq community” and thus had no
49 Bradford W Morse, “Developing Legal Frameworks for Urban Aboriginal Governance” (2010) 8 Aboriginal Policy Research 1 at 4, 8. 50 Ibid at 20–23. 51 Bernard v R, 2017 NBCA 48 at para 22, [2018] CNLR 79 [Bernard]; See also Bernard at para 43 (here the NBCA discusses whether or not the community continuity test from R v Powley, 2003 SCC 43 at para 23, [2003] 2 SCR 207 should be applied. Bernard argued it should not apply because he was a Status Indian and not Metis, but the NBCA rejected that argument). Vol. 40 Windsor Review of Legal and Social Issues 127 inherent right to hunt in the Saint John area, despite accepting that Mi’kmaq did inhabit and hunt in that area at the time of contact.52 On appeal, the New Brunswick Court of Appeal (the “NBCA”) dealt with the question of “whether the community claiming an Aboriginal right to hunt under section 35(1) of the Constitution Act, 1982, can be broadly defined as a ‘tribe/nation.’”53 The NBCA did not disturb the finding from trial that evidence had not been presented “that would allow one to conclude that a modern-day Nation has become the contemporary community entitled to exercise all rights that had historically been exercised by local communities.”54 Had Bernard argued that his section 2(d) right had been violated, he perhaps could have avoided the evidentiary burden required to show the entitlement of a contemporary community to exercise rights enjoyed by historic 2019 CanLIIDocs 3714 communities. Section 2(d) jurisprudence has not required proof of an association. This may be because the roots of the freedom of association are in labour where the rights of unions (and thus the collective rights of its members) are what have been litigated rather than the existence of those union.55 It may also be connected to the underlying purpose of section 2(d): allowing individuals to collectively pursue common goals. An association seems to be an assumed prerequisite to a section 2(d) challenge, rather than something that requires proof before the section 2(d) claim can be adjudicated. In this instance, Bernard may have been better able to overcome one of the hurdles in his case; however, it
52 R v Bernard, 2016 NBQB 21 at para 27, 444 NBR (2nd) 319 as cited in Bernard, ibid at para 143. 53 Bernard, supra note 51 at para 45. See also Bernard at para 31 (laying out Bernard’s two main issues: “(1) Did the lower court judges err in requiring ‘community continuity’ as part of the Aboriginal rights test? (2) Does the Mi’kmaq right to hunt include the right to decide who can participate in the right to hunt?”); Bernard at para 44 (for the Attorney General’s response). 54 Ibid at para 62. 55 In McGavin Toastmasters Ltd v Ainscough, [1976] 1 SCR 718 at 724–25, 1975 CanLII 9 (the Supreme Court rejected the idea that collective agreements functioned like a web of individual contracts where each member had an individual contract with the employer; rather, the court held it was not “possible to speak of individual contracts of employment and to treat the collective agreement as a mere appendage of individual relationships.” Even in a case like Lavigne, supra note 20, where the court held that the freedom from compelled association is protected under section 2(d), proof of association was not required).
128 Windsor Review of Legal and Social Issues Vol. 40 does not seem that section 2(d) would have enabled Bernard to avoid proving the entitlement to an Aboriginal right.
b. Advantages of a Section 2(d) approach
A section 2(d) approach offers advantages over trying to assert governance rights under section 35. One is that section 2(d) could be a means of asserting governance rights without having to meet the burdens of proving an integral, distinctive, and continuing entitlement to the right under the test established in R v Van der Peet (“Van der Peet”).56 Section 2(d) may also offer more benefits in the process of collective bargaining than from the duty to consult process. Another advantage to using section 2(d) is that it could expand the content of 2019 CanLIIDocs 3714 freedom of association beyond the labour context, making it a more meaningful right for all Canadians and providing the basis of a framework for its application beyond labour law.
i. Avoiding the Difficult Precedents from Section 35 Jurisprudence
Perhaps the biggest benefit of using section 2(d) of the Charter to assert Indigenous governance rights is the possibility of avoiding the section 35 test for Aboriginal rights. The test for determining the existence of an Aboriginal right requires proving that the activity is “an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.”57 One of the many criticisms of the Van der Peet test is that it does not confer general rights to all Indigenous peoples, rather, entitlement must be proven for each right claimed, by each claimant.58 Another criticism of the Van
56 R v Van der Peet, [1996] 2 SCR 507 at para 46, 137 DLR (4th) 289 [Van der Peet]. 57 Ibid. 58 Ibid at para 132 (Justice L’Heureux-Dubé was the first to criticize the Van der Peet test in her dissent to that decision. She argued that the majority’s approach to defining a s 35 right was overly restrictive and would amount to a “frozen right” approach rather than a “dynamic right” approach). Vol. 40 Windsor Review of Legal and Social Issues 129 der Peet test is its focus on continuity from pre-contact culture to the present day.59 Both of those elements can be difficult to prove and must be proven for each individual or community asserting the right rather than applying broadly once proven. A section 2(d) challenge could avoid these demanding elements of section 35 because section 2(d) does not require establishing an entitlement to any rights. Not having to meet the Van der Peet test could allow bands that owe their legal existence entirely to the Indian Act to assert governance rights.60 Section 2(d) only requires proving that there has been a substantial interference with either the formation of an association or the association’s collective activities undertaken to pursue a collective goal. Of course, the obvious challenge in the Indigenous governance context is that the framework for a 2019 CanLIIDocs 3714 section 2(d) challenge does not necessarily apply because of its dependence on the labour context; however, cases such as Libman v Quebec (AG) and Egg Marketing prove that section 2(d) applies beyond the labour context and affords protection for both forming or joining associations, and the activities of an association.61
ii. Access to Collective Bargaining Instead of the Duty to Consult
Collective bargaining, in the labour context, arises regardless of the identities of the parties involved.62 This is in contrast to the duty to consult, which only arises
59 Ibid at para 60, 165–171 (L’Heureux-Dubé criticized the continuity requirements in her criticism of the “frozen right” approach in the judgement’s dissent). 60 See Kent McNeil, “Aboriginal Title and Indigenous Governance: Identifying the Holders of Rights and Authority” (2016) 12:14 Osgoode Hall L School Leg Studies Research Paper 1 at 20–21 (McNeil points out that bands owing their existence to the Indian Act may not ever be able to meet the Van der Peet test criterion for a distinctive culture pre-European contact). 61 See Libman, supra note 14. See also Egg Marketing, supra note 15. 62 While there is more to section 2(d) than collective bargaining, jurisprudence thus far suggests that collective bargaining is one of the most effective tools offered by a section 2(d) approach, which is why collective bargaining is emphasized more in this paper than other tools available under section 2(d). The right to strike, which is also protected under section 2(d) is discussed later in the paper, and as will be mentioned later, the often-negative perceptions of
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“when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.”63 There must be an Aboriginal right at stake in order to trigger the duty to consult.64 If the Indigenous claimant is claiming a governance right over a particular practice, then governance over that practice must also be proven to the Van der Peet standard, a standard that has been called “daunting” and criticized as “def[ying] common sense.”65 The advantages to using a collective bargaining framework used rather than the duty to consult is that there are no prerequisites to entitlement. For example, in Newfound and Labrador v Labrador Métis Nation, the Newfound Court of Appeal (the “NLCA”) addressed the issue of whether or not claimants must “ethnically identify themselves before the Crown can be compelled to 2019 CanLIIDocs 3714 consult and accommodate them.”66 Even though the NLCA rejected the Crown’s argument “that claimants always have to self-identify as either Inuit or Métis before the Crown’s duty to consult and accommodate is triggered,”67 that question would be completely avoided in a section 2(d) claim because the obligation of collective bargaining does not rest on the association having any particular identification. The initial hurdle in a section 2(d) case is thus easier to overcome compared to a section 35 case, because relatively speaking, there is no equivalent prerequisite proof in section 2(d) jurisprudence.68
strike action (or protests) means it may not be as effective in achieving more than garnering attention. 63 Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511 at para 35, 2004 SCC 73 [Haida]. 64 Ibid. 65 Maria Morellato, “The Crown’s Constitutional Duty to Consult and Accommodate Aboriginal and Treaty Rights” (2008) Research Paper for the National Centre for First Nations Governance at 60, 62. 66 Newfoundland and Labrador v Labrador Métis Nation, 2007 NLCA 75 at para 33, 288 DLR (4th) 641 [Labrador Métis]. 67 Ibid at para 36. 68 There are potential disadvantages to shifting from the section 35 approach in that it may make it easier for unmeritorious rights claims to be litigated; however, that does not necessarily mean that shifting from section 35 to another approach (not necessarily a section 2(d) approach) would open the proverbial (and much-feared) floodgates. Vol. 40 Windsor Review of Legal and Social Issues 131
There are a number of other advantages to collective bargaining over the duty to consult. For instance, collective bargaining is regulated by legislation and has a well established framework in place, which sets out the procedure, including instilling time limits for when collective bargaining occurs.69 Further, collective bargaining, like the duty to consult, obliges parties to bargain in good faith,70 which requires disclosing “pertinent information” to promote open discussion between parties, to allow the parties to fully appraise the conditions under discussion,71 and to respond to information requests.72 Unlike the duty to consult, collective bargaining is not on a spectrum of entitlement.73
iii. Developing a Framework to Apply Section 2(d) Beyond Labour Law 2019 CanLIIDocs 3714
Courts have not yet defined the scope or content of section 2(d) protections beyond the labour context. The Supreme Court has acknowledged, however, that the model of collective bargaining embraced in Canada is not the only model available or protected by section 2(d).74 Expanding section 2(d) to Indigenous associations would be a significant change to the law, but one that courts and legislatures could cope with in the Indigenous governance context.
69 CLC, supra note 29, s 49 (unless agreed otherwise, notice to bargain may be given within four months of the end of a collective agreement. Once notice has been given, parties are obliged to start bargaining within 20 days unless otherwise agreed as per section 50(a)). 70 British Columbia Teachers’ Federation v British Columbia, 2015 BCCA 184 at para 373, 371 BCAC 204, rev’d by 2016 SCC 49, [2016] 2 SCR 407 (the Supreme Court’s reasons were contained within one sentence: “The majority of the Court would allow the appeal, substantially for the reasons of Justice Donald.” Donald JA was the dissenting judge in the BCCA decision, in which he concluded that the minimum standard for good faith negotiation, inter alia, “requires parties to explain their position and read and consider the positions of opposing parties. The Province failed to meet this minimum standard in this case”). 71 See CUPE, Local No 30 v City of Edmonton, [1995] Alta LRBR 102, 1995WL1737503. 72 See UNA v AHA, [1994] Alta LRBR 250, 1994WL1701478. 73 Haida, supra note 63 at para 37 (“[t]he content … however, varies with the circumstances”). 74 The Wagner model of bargaining was implemented in Canada in the 1940s. Decisions such as MPAO, supra note 3 at para 95 acknowledge that collective bargaining in Canada is not limited solely to this model. BC Health services, supra note 11 at para 91 and Ontario (AG) v Fraser, 2011 SCC 20 at para 48, [2011] 2 SCR 3 also note that other models of bargaining are available and that there is no guarantee of a particular process of collective bargaining.
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In labour law, there is a clear framework as to what freedom of association entails and how its associated rights function within that framework. Unlike other general classifications of associations, Indigenous governance and Aboriginal law in particular also have embedded structures or frameworks based on decades of jurisprudence. For example, while it may seem preposterous to extend a right to collective bargaining to associations like book clubs, a right to collective bargaining is not unlike the duty to consult that is already established and required in Crown-Indigenous relationships. In Behn v Moulton Contracting Ltd, the Supreme Court stated that “the duty to consult exists to protect the collective rights of Aboriginal peoples,” and “an Aboriginal group can authorize an individual or an organization to represent it for the purpose of asserting its s. 35 rights.”75 That is quite similar to unions protecting collective rights of 2019 CanLIIDocs 3714 workers, and the certified bargaining agent representing those workers during collective bargaining. One proposal for extending the protection of section 2(d) more broadly comes from within the labour context. David Doorey proposed what he called a “graduated freedom of association model,” which he saw extending to those employees not in a union, but who seek to make collective representations to their employer through an association.76 Under this model, employees would be guaranteed “meaningful dialogue” with employers and employers would have to consider representations in good faith, essentially granting a form of collective bargaining to an association of non-unionized employees.77 This model could work in an Indigenous context and demonstrate how section 2(d) might extend beyond the labour context in an ordered and manageable fashion. Section 2(d) has rarely been argued beyond the labour context. In cases where it has been successful such as Lavigne v OPSEU or Egg Marketing, plaintiffs bring section 2(d) claims in addition to other section 2 claims, such as claiming that both freedom of expression and freedom of association have been
75 Behn v Moulton Contracting Ltd, 2013 SCC 26 at para 30, [2013] 2 SCR 227. 76 Doorey, supra note 28 at 513. 77 Ibid at 514. Vol. 40 Windsor Review of Legal and Social Issues 133 violated.78 However, section 2(d) claims should not need to be attached to other Charter claims to succeed beyond the labour context. The Indigenous governance context could be a reasonable avenue for courts to explore, expanding the scope of section 2(d) independent of other section 2 rights because, as mentioned, the court is not creating a new foundation of jurisprudence. Further, as Kent McNeil points out, when courts identify an Aboriginal rights holder, “it is generally not necessary for the judges to specify precisely the collective entity that holds the right today,” and usually do so implicitly.79 This indicates that Indigenous rights are thought of collectively in ways that could align nicely with existing labour precedents. The substantial body of Aboriginal rights jurisprudence lays the groundwork for how to manage associated rights like collective bargaining—groundwork that simply does not 2019 CanLIIDocs 3714 exist in most other contexts.
c. Disadvantages of a Section 2(d) Approach
While section 2(d) offers potential new ways to protect or assert Indigenous governance rights, it may not be the most effective method. It is quite possible that an association has fewer rights than those granted under section 35, and section 2(d) may not provide any additional rights. For example, the associated right to collective bargaining may not offer anything more substantial than what is guaranteed by the Crown’s duty to consult. The right to strike, if it does exist beyond the labour context, likely has little power to effect recognition of governance rights because, as cases such as RWDSU, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd show, actions that could be interpreted as strike
78 See e.g. Pepsi-Cola, supra note 13. See also RWDSU v Dolphin Delivery Ltd, [1986] 2 SCR 573, 33 DLR (4th) 174 [Dolphin Delivery]; Batty v City of Toronto, 2011 ONSC 6862, 108 OR (3d) 571 [Batty] (in Dolphin Delivery, the Supreme Court held that an injunction prohibiting picketing violated section 2(b); in Batty, the ONSC held that an injunction banning Occupy protestors from a park between midnight and 5 a.m. violated sections 2(b) and (c), but was justified under section 1 of the Charter). 79 McNeil, supra note 60 at 19, 31 (McNeil also points out that “where the individuals are members of a subgroup within a larger entity such as an Aboriginal nation, it does not mean that the subgroup is the holder of the right”).
134 Windsor Review of Legal and Social Issues Vol. 40 activities are often classified as expressive activities or assembly, and therefore do not have the same reciprocity of action that striking entails.80 There is a chance that a section 2(d) challenge could impose additional hurdles for First Nations seeking to assert governance rights in that they may have to prove both a violation of section 2(d) as well as meet the section 35 test for Aboriginal right to self government over the matter in question. Additionally, courts may be unwilling to embrace novel or new approaches to Charter rights, which could mean that a section 2(d) challenge ends up being nothing more than a failed and expensive litigation experiment.
i. The Imposition of Collective Bargaining over the Duty to Consult 2019 CanLIIDocs 3714
Collective bargaining is both a pro and a con of shifting the section 2(d) framework from the labour context into an Indigenous governance context. Many of the benefits set out in the previous section, such as scope and set timelines, can also be seen as drawbacks. The scope of collective bargaining is generally limited to the bargaining unit, which may be more akin to negotiating with individual bands rather than entire nations. Depending on the claim, the duty to consult may be owed to the entire nation, rather than a small subset of it. The decision in Haida Nation v British Columbia (Minister of Forests) affirmed that the entire Haida Nation was owed the duty to consult—not just a governing body.81 Newfoundland and Labrador v Labrador Métis Nation also demonstrated that the broader scope of the duty to consult, as the NLCA “was satisfied it was sufficient in the present case to assert a credible claim that the claimants belong to an aboriginal people within s 35(1) of the Constitution Act, 1982” rather than also having to self identify with a specific Aboriginal people to trigger the duty to consult.82 Further, the duty to consult also protects, at least on an interim level, asserted
80 See Pepsi-Cola, supra note 13. 81 Ibid at para 35; Haida, supra note 63 at para 35. 82 Labrador Métis, supra note 66 at para 36. Vol. 40 Windsor Review of Legal and Social Issues 135 but unproven claims and fills procedural gaps in treaty rights.83 No such corollary exists in labour law. The timelines for collective bargaining may be inadequate to effectively deal with the myriad of complex issues related to Indigenous governance. Although the mandatory timelines could hasten prolonged negotiations around land claims, they may lead to undue compromises, or the process may completely fall apart (as it does in labour, from time to time). While labour codes do not set timelines for the maximum (or minimum) duration of collective bargaining, the shorter term nature of collective agreements would not support the decades long negotiation process that many land claims entail.84 Yet another disadvantage to collective bargaining when compared to the duty to consult is that collective bargaining can only happen within the timeframe and parameters 2019 CanLIIDocs 3714 set by the collective agreement. The duty to consult, on the other hand, is ongoing. Like the duty to consult, the right to collective bargaining is not a right to any substantive outcome. Because it is only right to a process, it may be less powerful than the duty to consult because meeting the process of collective bargaining may be a lower standard than fulfilling the duty to consult.85 In collective bargaining, the perception exists that both sides give and take during the negotiations as part of the duty imposed on both parties to bargain in good
83 Chris W Sandeson, Keith B Bergner & Michelle S Jones, “The Crown’s Duty to Consult Aboriginal Peoples: Towards an Understanding of the Source, Purpose, and Limits of the Duty” (2012) 49:4 Alta L Rev 821 at 825–27. 84 In 2015, the average collective agreement was 43.8 months; see Employment and Social Development Canada, “Overview of Collective Bargaining in Canada 2015” by Workplace Information and Research Division (Ottawa: ESDC, June 2016) at 6. This is significantly shorter than the 18-year average for land claims negotiations; see Aboriginal Affairs and Northern Development Canada, “Final Report: Evaluation of the Process for Negotiating Comprehensive Land Claims and Self-Government Agreements” by Evaluation, Performance Measurement, and Review Branch Audit and Evaluation Sector (Ottawa: AANDA, November 2013) at 2. 85 Meredith v Canada (AG), 2015 SCC 2 at paras 40–48, [2015] 1 SCR 125 (the Supreme Court held that even though wage freezes precluded negotiations on wage increases for a limited amount of time, the right to a process of collective bargaining was fulfilled because there were still opportunities (of which the RCMP took advantage) to negotiate increases to allowances).
136 Windsor Review of Legal and Social Issues Vol. 40 faith. The perception of both sides compromising may be just that: a perception. There is no guarantee that the stronger party in collective bargaining will make more concessions—just as the duty to consult and the honour of the Crown often seem to result in the Indigenous parties making more concessions than the Crown.86 In a situation where governance rights are at stake, collective bargaining could be insufficient in terms of retaining governance powers when negotiating with an entity that apparently works on the assumption that, when it comes to Indigenous matters, the Crown has jurisdiction until proven otherwise.
ii. Limited Protection
Section 2(d) might not offer any protection of Indigenous rights or Indigenous 2019 CanLIIDocs 3714 governance as it may only protect their ability to form an association or organization, but not its actual activities.87 If this is the case, section 2(d) is just an empty shell rather than a full basket of rights. Indigenous organizations would then still have to fall back on section 35 and prove an Aboriginal right exists, and that it is one to which they are entitled. Further, the associated right to strike may be relatively meaningless because, as mentioned previously, outside of the labour context, strike-like activities like picketing have been protected under sections 2(b) or (c).88 Even
86 Lorne Sossin explores the procedural elements of the duty to consult and whether or not it can be a meaningful tool as a “reconciliatory procedural mechanism”: Lorne Sossin, “The Duty to Consult and Accommodate: Procedural Justice as Aboriginal Rights” (2010) 23:1 Can J Admin L & Prac 93; In a similar vein, Rachel Ariss, Clara MacCallum Fraser, and Diba Nazneen Somani conclude the consultation procedures in Crown policies on the duty to consult and accommodate limits reconciliation: Rachel Ariss, Clara MacCallum Fraser & Diba Nazneen Somani, “Crown Policies on the Duty to Consult and Accommodate: Towards Reconciliation” (2017) 13:1 McGill J Sust Dev L 1; Kaitlin Ritchie criticized the duty to consult as undermining or diminishing Indigenous rights rather than protecting them: Kaitlin Ritchie “Issues Associated with the Implementation of the Duty to Consult and Accommodate Aboriginal Peoples: Threatening the Goals of Reconciliation and Meaningful Consultation” (2013) 46:2 UBC L Rev 397. 87 Egg Marketing, supra note 15 at para 105 (this is contrary to the majority in MPAO, supra note 3, which does grant the right to act collectively in pursuit of constitutional rights). 88 Judy Fudge & Heather Jensen “The Right to Strike: The Supreme Court of Canada, the Charter of Rights and Freedoms and the Arc of Workplace Justice” (2016) 27:1 King’s LJ 89 Vol. 40 Windsor Review of Legal and Social Issues 137 within the labour context, the right to strike is fairly restricted in that it is controlled by legislation.89 Strikes with legislation are considered illegal and can lead to repercussions, regardless of the purpose of the strike. Unless striking or picketing has some sort of economic effect, it is not an effective tool and instead may end up having the opposite effect to what was intended, if one of the goals is to increase support for those striking.90 Further, the common law right to freedom of association does not offer any guaranteed protection for associated rights like collective bargaining. Brian Langille and Benjamin Oliphant note that in the pre-Wagner model of labour relations in Canada, the common law right to freedom of association did not extend to enforcing a collective agreement, nor was there any legal duty on either employers or employees to adhere to its terms.91 While the common law right to 2019 CanLIIDocs 3714 freedom of association is surely more robust today, courts may be reluctant to extend s 2(d) in such a way as to offer protection for Indigenous governance rights.
at 104 (Judy Fudge and Heather Jensen point out that “the Court’s conception of a strike as a collective withdrawal of labour in support of collective bargaining processes to reach a collective agreement with an employer setting terms and conditions of employment should not necessarily be interpreted as an exhaustive statement of the protection for strike activity afforded by the Canadian Charter”). 89 See generally CLC, supra note 29 at ss 87.2, 88.1 & 89. 90 See e.g. SFL, supra note 12 at paras 46–51 (strikes are recognized as serving an economic sanction. It is also important to note that while strikes have historically been an important tool in labour relations, they have not been very effective when the power imbalance is too great. For example, workers at the Chronicle Herald went on strike for nearly 19 months; workers at an Ikea store in Richmond, BC went on strike for nearly 17 months; in 2014, BC teachers engaged in strike action from April to September, starting with weeks of work-to-rule before rotating strikes and finally a full strike and lockout. These situations demonstrate that strikes are less powerful at achieving successful outcomes than they were historically and, as in the case of the BC teachers, may actually have harmful effects in that the striking teachers were vilified). See e.g. Charlie Smith, “Deconstructing the B.C. Liberal Spin Campaign to Protect Christy Clark During the Teachers Strike” (12 September 2014), online: The Georgia Straight
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iii. Unwillingness to Accept New or Novel Approaches to Charter Rights
Courts could be unwilling to accept new or novel approaches to Charter rights. A section 2(d) challenge in this context would be novel in that it seeks to extend the full suite of protections under freedom of association in labour law to a completely new context, that of Indigenous governance. This could be difficult in light of what Langille and Oliphant call the “right to substantive freedom problem,” which requires “going from interpreting section 2(d) as requiring governments to respect a sphere of conduct to requiring a positive entitlement to make the freedom meaningful.”92 Section 2(d) would thus require governments not only to recognize an association, but also positively engage in those 2019 CanLIIDocs 3714 associated rights like collective bargaining. Section 2(d) has rarely been explored beyond the labour context. Even within that context, it took decades for a right like collective bargaining—a right that the framers of the Constitution saw as implicitly protected by freedom of association—to gain constitutional protection.93 Even within the labour context, it may be hard to argue section 2(d) is violated when the potential infringement does not directly arise from “a challenge to a model of labour relations imposed by government.”94
92 Ibid at 268. 93 The original labour trilogy, (Alberta Reference, supra note 3; PSAC v Canada, [1987] 1 SCR 424, 1987 CanLII 89; RWDSU v Saskatchewan, [1987] 1 SCR 460, 1987 CanLII 90) rejected constitutionalizing a right to collective bargaining in 1987. It took 20 years for the Supreme Court to reverse that position when it granted the right to a process of collective bargaining in BC Health Services, supra note 11. Yet, as discussed above, the committee debates show that the framers envisioned s 2(d) as including a right to collective bargaining, as well as applying beyond the labour context. See Special Joint Committee No 15, supra note 7; See also Special Joint Committee No 43, supra note 8. 94 Michael Dunn, “Many Questions and a Few Answers: Freedom of Association after Saskatchewan Federation of Labour, Mounted Police Association of Ontario and Meredith” (2015) 71:15 SCLR 385 at 405; in Meredith, supra note 83 RCMP officers argued the Expenditure Restraint Act, SC 2009, c 2, s 393 violated section 2(d) because it unilaterally nullified an important term of the collective agreement by setting aside a scheduled wage increase. The Supreme Court found that while section 2(d) can protect associational activities even in the absence of collective bargaining, section 2(d) was not violated in this case because Vol. 40 Windsor Review of Legal and Social Issues 139
The decision in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations) (“Ktunaxa”) demonstrated that the discomfort the Supreme Court has with extending Charter protection in ways not previously contemplated by the court.95 The outcome of this case may not bode well for extending a right traditionally exercised in only one context to a completely new context –one that arguably lacks a comprehensive framework for its application. However, the Ktunaxa decision was not unanimous, and, like the early labour cases, had a strong dissent discussing the scope of the right at issue and expressing willingness to have it expanded. It took three decades for collective bargaining to gain constitutional protection, so initial unwillingness to adopt novel approaches to section 2(d) Charter rights may require more than one round of litigation before they eventually succeed. The question then becomes whether 2019 CanLIIDocs 3714 or not Indigenous organizations wish to expend the resources continuing to explore other ways to assert governance rights outside of section 35.
iv. The Potential Imposition of Additional Hurdles
Section 2(d) could result in additional hurdles for Indigenous organizations in that they would have to show both that their right to freedom of association has been “substantially interfered” with and that there is an Aboriginal right at stake, even if a section 2(d) claim is relatively straightforward compared to a section 35 claim. Given the extremely high burden of litigation for Indigenous claimants, additional barriers without any promise of success would not be
other negotiation opportunities still existed and were used. Several people, including Dunn at 410, have criticized Meredith as being hard to reconcile with SFL and MPAO. 95 Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 SCR 386 [Knutaxa] (in this case, the Supreme Court rejected the section 2(a) freedom of religion claim on the basis that the Ktunaxa’s claim did not fall within the scope of section 2(a). According to the majority, the Ktunaxa sought to protect the presence of the grizzly bear spirit itself, which thus extended section 2(a) too far because then freedom of religion would also apply to the object of the belief. The dissent agreed with the Ktunaxa that allowing the ski resort to be developed would interfere with their ability to act in accordance with their religious beliefs).
140 Windsor Review of Legal and Social Issues Vol. 40 worth pursuing.96 It would be easier and less expensive to simply choose one route to argue unless the situation was such that a section 2(d) claim had a legitimate chance of success without imposing additional requirements. It is also important to remember that section 2(d) does not in itself confer recognition of any rights other than that to freely associate. There is unlikely any desire from any prospective party at the table for section 2(d) to automatically grant Aboriginal rights merely by proving association rather than entitlement. Section 2(d) could be seen as unnecessarily granting rights to a much broader population than either the federal government or Indigenous communities ever contemplated.97
III. CONCLUSION 2019 CanLIIDocs 3714
Section 2(d) offers some protections and benefits that may help Indigenous nations and organizations assert or protect their governance rights and activities. However, based on the limited context of section 2(d) jurisprudence and the reluctance of the courts to embrace new and novel approaches to the Charter, it seems the disadvantages of a section 2(d) approach probably outweigh the benefits. That said, arguing section 2(d) may provide extra support to strengthen Indigenous governance claims in future litigation.
96 See Sawridge, supra note 20 (this may be one of the reasons the Sawridge band only argued section 2(d) as an alternative argument at trial and subsequently abandoned the argument altogether in the later rounds of litigation). 97 An example of this would be claims such as those in Eastern Canada where communities claim Indigenous identity based on very limited presence of Indigenous individuals amongst ancestors. This is one example that demonstrates some parameters would need to be established to constrain section 2(d). Vol. 40 Windsor Review of Legal and Social Issues 141
MIND THE (LIABILITY) GAP: THE RELEVANCE OF THE DUTY OF CARE TO HOLD TRANSNATIONAL CORPORATIONS ACCOUNTABLE
Adeline Michoud*
I. INTRODUCTION
In October 2018, the Canadian Subcommittee on International Human Rights of the Standing Committee on Foreign Affairs and International Development presented a report to the House of Commons, calling for the introduction of
legislative measures in Canada to eliminate all forms of child labour in the 2019 CanLIIDocs 3714 supply chains of Canadian companies.1 This proposal tackles the issue raised by several abuses committed by large multinational companies in the course of their subsidiaries’ activities abroad. Noting that the voluntary nature of corporate social responsibility initiatives had to that point not led to satisfactory compliance levels with human rights standards, the report called upon parliament to foster legal enforcement to ensure the protection against child labour.2 The report also encouraged the Government of Canada to discuss forced labour and child labour issues in its free trade negotiations and to include an assessment of the progress made to
* Adeline Michoud is a PhD Candidate and teaching assistant in international law at the University of Geneva. She dedicates her PhD thesis to the accountability of multinational corporations and conducts an international law and comparative law research on the topic. Adeline Michoud obtained a dual law degree in English Law and French Law at the Universities of King’s College London and Paris I Panthéon Sorbonne. After the completion of her LLM studies at the Graduate Institute of international and development studies, she has worked for several international organisations in Geneva. Later, she studied Swiss law in the perspective of the Swiss Bar exam. In parallel to her doctoral studies, Adeline Michoud now works as a trainee lawyer in one of the world’s leading international firms.
1 House of Commons, Standing Committee on Foreign Affairs and International Development, Subcommittee on International Human Rights, A Call to Action: Ending the Use of All Forms of Child Labour in Supply Chains (October 2018) (Chair: Michael Levitt). 2 Ibid at 23.
142 Windsor Review of Legal and Social Issues Vol. 40 eliminate these practices in supply chains.3 The report encouraged the government of Canada to restrict its public procurement markets to noncompliant companies to condemn the use of child labour in their supply chains.4 This recent report underlines the necessity for state authorities to take action in order to regulate the activities of multinational companies, which operate in foreign developing countries, aiming to benefit from the scarce human rights regulations in these countries. On June 16, 2011, the United Nations Human Rights Council endorsed the United Nations Guiding Principles on Business and Human Rights (the “UNGPs”), a soft law instrument consisting of 31 principles aiming to promote human rights’ enforcement by transnational corporations.5 2019 CanLIIDocs 3714 Principle 25 of the UNGPs provides that states must take “appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that victims have access to an effective remedy.”6 Having access to an effective remedy includes the existence of legal mechanisms through which corporations can be held accountable for their failure to supervise the actions of their subsidiaries or subcontractors abroad. According to Professor John Ruggie, the United Nations Secretary-General’s Special Representative for Business and Human Rights from 2005 to 2011: “(t)o respect rights essentially means not to infringe on the rights of others – put simply, to do no harm.”7 Therefore, the UNGPs are based on the same foundation as tort law. Specifically, they relate to the English tort of negligence, which is based on the rule: “you must not injure your neighbour.”8
3 Ibid. 4 Ibid at 43. 5 Office of the High Commissioner for Human Rights, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, UNHROR, 2011, UN Doc HR/2011/4 [UNGPs]. 6 Ibid at 27. 7 John Ruggie, Protect, Respect and Remedy: A Framework for Business and Human Rights, OHCHR, 8th Sess, UN Doc A/HRC/8/5 (2008) at 24. 8 Donoghue v Stevenson, [1932] UKHL 100 at 580, [1932] AC 562 [Donoghue]. Vol. 40 Windsor Review of Legal and Social Issues 143
Therefore, corporate social responsibility principles and tort law intertwine. Indeed, the impact of corporations on issues such as labour or environmental rights also belongs to the scope of tort law.9 As a result, due to the protection that tort law offers for personal interests such as health and property, private individuals can have recourse in tort law to enforce corporate social responsibilities.10 In common law countries, the duty of care concept in tort law requires a person acting with negligence, thereby causing harm to another, to repair the wrong caused to the victim.11 Common law is a dynamic body of law, capable of recognizing new causes of action in tort to suit new legal challenges. This corresponds to the description provided by Roscoe Pound in 1921, which stated that common law is “essentially a mode of judicial and juristic thinking, a mode 2019 CanLIIDocs 3714 of treating legal problems rather than a fixed body of definite rules … [a process of] moulding rules … into accord with its principles.”12 As a consequence, a parent corporation that failed to exercise the due oversight of its subsidiary and failed to prevent any harm from happening can be held liable for its own breach of duty. The duty of care focuses on the direct liability of the parent company arising from its failure to exercise due diligence in controlling the acts of its subsidiaries. Therefore, the parent company incurs liability for its actions (notably the fact that it aided and abetted the subsidiary in committing the wrong), but also for its omitting to exercise a careful supervision. The duty of care thus defines the necessary standard of conduct that a company needs to fulfil when conducting its activities. It is based on an objective business rationale
9 See Karin Buhmann, “Integrating Human Rights in Emerging Regulation of Corporate Social Responsibility: the EU Case” (2011) 7:2 Int JL Context 139 at 148. 10 Peter Cane, “Using Tort Law to Enforce Environmental Regulations?” (2002) 41:3 Washburn LJ 427 at 443. 11 See generally Astrid Sanders, “The Impact of the ‘Ruggie Framework’ and the United Nations Guiding Principles on Business and Human Rights on Transnational Human Rights Litigation” in Karen E Bravo & Jena Martin, eds, The Business and Human Rights Landscape: Moving Forward, Looking Back (Cambridge: Cambridge University Press, 2015) 288. 12 Roscoe Pound, The Spirit of the Common Law (Baltimore: Marshall Jones Company, 1921) at 1 [Pound].
144 Windsor Review of Legal and Social Issues Vol. 40 but not on an attempt to achieve extraordinarily high standards. The conduct of the parent company is thus assessed on the basis of the relevant national liability rules.13 The discussion on the duty of care of corporations for the actions of their subsidiaries has been particularly elaborate in two common law jurisdictions, namely Canada and the United Kingdom. The discussion was fostered largely by two cases: Chandler v Cape Plc (“Chandler”),14 decided in the United Kingdom in 2012 and Choc v Hudbay Minerals (“Choc”),15 decided in Canada in 2013. Both cases are pioneering as for the first time, common law courts found that parent corporations could be held directly liable for the actions of their subsidiaries as they were deemed to owe a certain duty of care.16 Over the last few years, the United Kingdom and Canada are the 2019 CanLIIDocs 3714 countries that have most addressed the question of the duty of care of parent companies in their jurisprudence. In this article, I shall hereafter analyse the evolution of the duty of care in these two jurisdictions and assess the different requirements necessary to engage the responsibility of the parent company. Further, I will discuss the efficiency of this duty of care concept to hold parent companies liable for the wrongs of their subsidiaries and propose ideas to increase transnational corporations’ accountability before the law.
II. THE DEVELOPMENT OF THE NOTION OF DUTY OF CARE IN THE CASE LAW a. The Development of the Case Law in the United Kingdom
The notion of the duty of care built up progressively in the United Kingdom’s case law. The question of the duty of care of parent companies towards their subsidiaries was raised in Connelly v RTZ Corp Plc (“Connelly”), decided by
13 See Chandler v Cape Plc, [2012] EWCA Civ 525, [2012] 3 All ER 640 [Chandler]. 14 Ibid at para 80 (the Court determined that a parent company may be held liable for injuries sustained by employees of a subsidiary if the parent company knew or should have foreseen that unsafe workplace conditions would cause harm). 15 See Choc v Hudbay Minerals Inc, 2013 ONSC 1414 at para 75, 116 OR (3d) 674 [Choc]. 16 See Michael Goldhaber, “Corporate Human Rights Litigation in Non-U.S. Courts: A Comparative Scorecard” (2013) 3:1 UC Irvine L Rev 127 at 133 [Goldhaber]. Vol. 40 Windsor Review of Legal and Social Issues 145 the House of Lords.17 In this case, a worker employed by Rossing Uranium Limited, a subsidiary of the British RTZ company, asserted that he had developed cancer while working in a uranium mine due to the exposure to radioactive material in the mine, and the lack of safety measures provided by the parent company. He claimed that RTZ had devised Rossing Uranium Limited’s policy on health, safety, and the environment, therefore contributing to the damage. Ultimately, Lord Justice Wright held:
[RTZ] had taken into its own hands the responsibility for devising and operating the policy for health and safety at the Rossing mine, and that either … [RTZ] or one or other of its English subsidiaries implemented that policy and supervised the precautions necessary to ensure so far as
was reasonably possible, the health and safety of Rossing employees 2019 CanLIIDocs 3714 through the RTZ supervisors. Such an allegation, if true, seems to me to impose a duty of care upon those defendants who undertook those responsibilities, whatever contribution Rossing itself may have made towards safety procedures in the mine. The situation would be an unusual one; but if the pleading represents the actuality then … the situation is likely to give rise to a duty of care.18
Therefore, in this case the consideration of the existence of a duty of care was analysed on the basis of the actions taken by the parent company to set up the policies of its subsidiaries. The court considered that in principle, the parent company could have been under a direct duty of care towards the employees of its subsidiary as it had taken on responsibility for devising and operating the health and safety policy of its subsidiary. However, in Connelly, the claimant’s action failed because it had not been brought within the statutory deadline. Later, in Lubbe v Cape Plc, the House of Lords had to consider whether the omissions of a parent corporation could constitute a breach of a duty of care.19 Lord Bingham of Cornhill, writing for the majority, noted:
17 [1998] 12 WLUK 127, [1999] CLC 533 (QB Div) [Connelly]. 18 Ibid at 538. 19 [2000] UKHL 41, [2000] 4 All ER 268 (HL) [Lubbe].
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[T]he claim is made against the defendant as a parent company which, knowing (so it is said) that exposure to asbestos was gravely injurious to health, failed to take proper steps to ensure that proper working practices were followed, and proper safety precautions observed throughout the group. In this way, it is alleged, the defendant breached a duty of care which it owed to those working for its subsidiaries or living in the area of their operations (with the result that the plaintiffs thereby suffered personal injury and loss).20
Therefore, it was recognized here that a parent company can, in principle, owe a direct duty of care to its subsidiaries’ employees.21 However, the case was rejected on the basis of forum non conveniens, as it was held that South Africa was the more appropriate forum to hear the claim.
The first decision to recognize the duty of care of parent companies 2019 CanLIIDocs 3714 towards the employees of its subsidiaries was the Chandler decision of the English Court of Appeal.22 In Chandler, an employee of a UK subsidiary brought a claim against Cape, the UK based parent company for the harm resulting from exposure to asbestos.23 The Court refused to link the piercing of the corporate veil theory to the existence of a duty of care, explaining that: “a subsidiary and its company are separate entities. There is no imposition or assumption of responsibility by reason only that a company is the parent company of another company.”24 As a result, the key question to be answered by the Court was whether the parent company, through its behaviour, had taken on a direct duty towards the subsidiary’s employees.25 The Court held that “in appropriate circumstances the law may impose on a parent company
20 Ibid at 271. 21 Peter Muchlinski, “Corporations in International Litigation: Problems of Jurisdiction and the United Kingdom Asbestos Cases” (2001) 50:1 ICLQ 1 at 3. 22 Chandler, supra note 13. See generally Martin Petrin, “Assumption of Responsibility in Corporate Groups: Chandler v Cape Plc” (2013) 76:3 Mod L Rev 603; Siel DeMeyere, “Liability of a Mother Company for Its Subsidiary in French, Belgian, and English Law” (2015) 23:3 ERPL 385. 23 Chandler, supra note 13. 24 Ibid at para 69. 25 Ibid at para 70. Vol. 40 Windsor Review of Legal and Social Issues 147 responsibility for the health and safety of its subsidiary’s employees.”26 The Court of Appeal found that it is not necessary to show the parent’s involvement in the health and safety policy of the subsidiary. Instead, it applied the three-part test to establish that the parent company owed a duty of care, as set out in Caparo Industries Plc v Dickman and Others.27 The court in Chandler found the three conditions of the test were met as: (i) the harm was foreseeable; (ii) there was a sufficient proximity between the parent company and the subsidiary’s activities; and (iii) it was deemed just and reasonable to impose a duty of care on the parent company.28 Ultimately, the Court of Appeal held that a duty of care was owed to Mr. Chandler as the parent company:
2019 CanLIIDocs 3714 [O]ught to have superior knowledge on some relevant aspect of health and safety in the particular industry; the subsidiary’s system of work is unsafe as the parent company knew or ought to have known; and the parent knew or ought to have foreseen that the subsidiary or its employees would rely on its using that superior knowledge for the employees’ protection.29
Therefore, the Court of Appeal based the company’s liability on its actual or attributed knowledge. It found that the parent company “knew, or ought to have known, that the subsidiary’s system of work was unsafe” and considered that “it knew, or ought to have foreseen, that the subsidiary or its employees would rely on [the parent company’s] superior knowledge for the employees’ protection.”30 The theory is “when a parent company is directly involved in its subsidiary's operations or exercises de facto control, then it owes a duty of care to … anyone
26 Ibid at para 80. 27 [1990] All ER 568 at 574, 2 AC 605 [Caparo], cited in ibid at para 62. 28 Chandler, supra note 13 at para 80; Thompson v Renwick Group, [2014] EWCA Civ 635 at para 37, [2014] PIQR P18 (the Court held that for the fairness requirement to be met, it was necessary to prove that the parent company “was better placed, because of its superior knowledge or expertise, to protect the employees of subsidiary companies”). 29 Chandler, supra note 13 at para 80. 30 Ibid.
148 Windsor Review of Legal and Social Issues Vol. 40 affected by the subsidiary's operations.”31 However, the liability will only be retained if there is “sufficient involvement in control over and knowledge of the subsidiary operations by the parent such that there is no reason why the general principles of duty creation and negligence should not apply.”32 It must be noted that the existence of a duty of care between a UK based parent company and a foreign subsidiary often constitutes the required connecting factor that British courts consider in order to establish whether they have jurisdiction over a certain claim. In fact, several cases involving adverse impacts of British multinational companies abroad have been presented before English courts.33 However, uncertainty concerning the possibility of establishing jurisdiction for English courts remains. Indeed, different conclusions have been 2019 CanLIIDocs 3714 reached by the English courts recently.34 This was the case in Lungowe v Vedanta Resources Plc (“Lungowe”), which was then confirmed by the Court of Appeal in 2017.35 This case involved Zambian farmers who alleged injury and damage to their persons and their property due to the activities undertaken in a mine close to their lands by KCM, an indirect subsidiary of Vedanta. The claimants asserted that they suffered from pollution and environmental damage caused by the mine’s exploitation, underlining that this pollution had endangered their livelihoods and physical, economic, and social wellbeing. In the first instance, the High Court analysed the control exercised by the parent company Vedanta over the mining operations.36 The High Court held that it was reasonable to hold Vedanta accountable as it had “the necessary financial
31 Goldhaber, supra note 16 at 132. 32 Richard Meeran, “Litigation of Multinational Corporations: A Critical Stage in the UK” in Menno T Kamminga & Saman Zia-Zarifi, eds, Liability of Multinational Corporations under International Law (The Hague: Kluwer Law International, 2000) 251 at 261. 33 See generally Ekaterina Aristova, “Tort Litigation against Transnational Corporations in the English Courts: The Challenge of Jurisdiction” (2018) 14:2 Utrecht L Rev 6. 34 See generally Lucas Roorda, “Adjudicate This! Foreign Direct Liability and Civil Jurisdiction in Europe” in Angelica Bonfanti, ed, Business and Human Rights in Europe: International Law Challenges (New York: Routledge 2018) 195 at 209 [Roorda]. 35 [2016] EWHC 975 (TCC), [2016] BLR 461 [Lungowe High Court]; [2017] EWCA Civ 1528, [2018] 1 WLR 3575 [Lungowe Court of Appeal]. 36 Lungowe High Court, supra note 35 at para 77. Vol. 40 Windsor Review of Legal and Social Issues 149 standing to pay out any damages that are recovered.”37 The High Court deemed Vedanta to be the “real architects of the environmental pollution,” and noted that Vedanta “making millions of pounds out of the mine” should be taken into account.38 Based on this fact, and the existence of an arguable claim against the English-domiciled parent company, the High Court agreed to recognize their jurisdiction to try the case, even if the wrongful tort took place abroad. Upon appeal, the Court of Appeal entirely upheld the High Court’s ruling. Nevertheless, Lord Justice Simon, writing for the majority, held that the absence of a breach of a duty of care of the parent company did not imply a bar for the Court to hear the issue.39 Indeed, the Court held that a claim cannot be dismissed on the basis that it is weak or not arguable enough. In addition to this, the Court of Appeal considered that a parent company could be held liable in 2019 CanLIIDocs 3714 two circumstances: first, when the issue at stake in the case is a health and safety policy that has been implemented by the parent company, and second, when the parent company controls the operations which gave rise to the claim.40 However, two subsequent Court of Appeal decisions in 2018 refused to grant jurisdiction to UK courts for claims invoking the breach of the duty of care by British parent companies abroad. In Okpabi and others v Royal Dutch Shell Plc and Shell Petroleum Development Company of Nigeria Ltd (“Okpabi”), two groups of individuals living in the Niger Delta in Nigeria claimed that the activities undertaken by Royal Dutch Shell Plc (“RDS”), a company incorporated in England, which acted through its Nigerian subsidiary, Shell Petroleum Development Company of Nigeria Ltd (“SPDC”), had caused environmental damage in their region.41 The claimants argued that RDS had a duty of care on SPDC because of the control it exercised over it. The High Court applied the three-stage test in Caparo to determine whether there was a duty of care. The Court held that the second condition was
37 Ibid at para 146. 38 Ibid at para 78. 39 Lungowe Court of Appeal, supra note 35 para 90. 40 Ibid at para 83. 41 [2017] EWHC 89 (TCC), [2017] WLR(D) 52 [Okpabi High Court].
150 Windsor Review of Legal and Social Issues Vol. 40 not fulfilled, as there was not enough proximity between RDS and SPDC.42 In considering the “relationship of proximity”, the court considered the four conditions identified by Lady Justice Arden in the Court of Appeal in Chandler, namely: (i) whether the companies were operating the same businesses; (ii) whether the parent had superior or specialist knowledge compared to the subsidiary; (iii) whether the parent had knowledge of the subsidiary’s systems of work; and (iv) whether the parent knew that the subsidiary was relying on it to protect the claimants.43 The Court found that none of the four conditions were satisfied to find the existence of a certain “proximity.”44 Moreover, regarding the third condition on whether it was “fair, just and reasonable” to impose a duty of care to RDS, the Court considered that imposing a duty of care would impose “liability in an indeterminate amount, for an 2019 CanLIIDocs 3714 indeterminate time, to an indeterminate class.”45 Therefore, as there was no duty of care owed by the parent company RDS, the High Court considered that it had no jurisdiction to hear the claim relating to the Nigerian company SPDC. The High Court indicated that the failure to prove the existence of a duty of care of the parent company towards the subsidiary company that committed the wrongful acts abroad barred the possibility for English courts to consider that they have jurisdiction.46 The decision was appealed to the Court of Appeal, which rendered its decision on February 14, 2018.47 The Court of Appeal agreed with Justice Fraser that the main question to examine in determining the court’s jurisdiction was to assess whether RDS had a duty of care towards the claimants. As in the High Court decision, the Court of Appeal held that the starting point was to assess if the three conditions of the duty of care set out in Caparo were met, namely, first, if the harm was foreseeable, second, if there was proximity between the parent
42 Ibid at para 114. 43 Ibid at paras 116–17. 44 Ibid at para 116. 45 Ibid at para 114. 46 Ibid at para 122. 47 Okpabi and others v Royal Dutch Shell Plc and Shell Petroleum Development Company of Nigeria Ltd, [2018] EWCA Civ 191, [2018] Bus LR 1022 [Okpabi Court of Appeal]. Vol. 40 Windsor Review of Legal and Social Issues 151 company and the subsidiary, and third, if it could be held reasonable to impose this duty of care on the parent company.48 The foreseeability condition was met, but the appellate judges, as Justice Fraser had previously done, found that the proximity condition was not fulfilled.49 However, the Court of Appeal analyzed the question of proximity in a different way. Lord Justice Simon notably cited Lord Justice Oliver in Caparo, who noted that proximity is “no more than a label which embraces not a definable concept but merely a description of circumstances from which, pragmatically, the courts conclude that a duty of care exists.”50 Therefore, the court seemed to imply that a case-by-case analysis would need to be undertaken and that there is no general rule to determine question of the existence of a duty of care between a parent company and its subsidiary before looking at the 2019 CanLIIDocs 3714 context. The Court of Appeal also confirmed that a distinction should be drawn between parent companies who exercise control over the operations of their subsidiaries and parent companies who issue mandatory standards intended to be applied by their subsidiaries. The Court found that the present case fell into the second category and that “the issuing of mandatory policies plainly cannot mean that a parent has taken control of the operations of a subsidiary … such as to give rise to a duty of care in favour of any person or class of persons affected by the policies.”51 There is a lack of coherence in the recent case law with regard to the circumstances where a duty of care can be deemed to exist. Indeed, while the court in Okpabi has categorically held that the issuing of mandatory standards from a parent company to its subsidiary did not create any duty of care, in Lungowe, rendered only a few months earlier, the Court of Appeal found that it was possible to establish a duty of care when a health and safety policy is implemented by the parent company.52 This was followed in a subsequent case
48 Ibid at para 84. 49 Ibid at paras 84, 127. 50 Caparo, supra note 27 at 585, as cited in ibid at para 24. 51 Okpabi Court of Appeal, supra note 47 at para 89. 52 Lungowe Court of Appeal, supra note 35 at para 83.
152 Windsor Review of Legal and Social Issues Vol. 40 called AAA & Others v Unilever PLC and Unilever Tea Kenya Limited Unilever (“Unilever”) in which the Court of Appeal conceded that a parent company owed a duty of care if it had given relevant advice to its subsidiary as to the management of its activities.53 This illustrates the lack of clarity of the notion of duty of care. In addition to the current lack of clarity, two main critiques can be raised against the present English case law. First, the approach currently taken by the Court of Appeal mixes both the determination of jurisdiction with the merits of a case, whereas both should be distinguished.54 Access to justice should not depend on the potential chances of success of a case, as it is possible that the assessment of the court could be conducted with less care and depth than it would be for a case whose jurisdictional issues have already been decided. The 2019 CanLIIDocs 3714 reasoning of the English Court of Appeal is in stark contrast with the reasoning of the Court of Appeal of the Hague, which had affirmed that: “it cannot be ruled out in advance that a parent company may, in certain circumstances, be liable for damages resulting from acts or omissions of a subsidiary.”55 Secondly, the fact that the claimants are required to prove the degree of the parent company’s involvement in the subsidiary’s activities is condemnable. In Unilever, this created an “insurmountable burden of proof for victims” as public documents were the only evidence available to the plaintiffs to support their claim.56 To meet this burden of proof, claimants are thus required to
53 AAA & Others v Unilever PLC, Unilever Tea Kenya Limited, [2018] EWCA Civ 1532 at para 37, [2018] All ER (D) 87 [Unilever]. 54 Roorda, supra note 34 at 209. 55 Court of Appeal, The Hague, 18 December 2015, Eric Barizaa Dooh of Goi and others v Royal Dutch Shell Plc and Others, (2015) ECLI:NL:GHDHA:2015:3586 at para 32 (Netherlands). 56 See Lisa Kadel, Tara Van Ho & Anil Yilmaz Vastardis, “Inaccessible Remedies: The Unrealistic Expectations of Proof in AAA v. Unilever” Business and Human Rights Resource Centre, online:
2019 CanLIIDocs 3714 b. The Development of the Case Law in Canada
A similar approach to the one taken in Chandler was adopted in the Canadian decision Choc rendered in 2013. This case involved a Guatemalan Indigenous community who claimed a violation of their rights when a subsidiary of a Canadian parent company hired security forces. The claimants alleged that the security personnel at Hudbay Mineral’s mining project in Guatemala engaged in several abuses including the killing of an outspoken critic of the mining activities, the shooting of another man, the rape of numerous women and the removal of people from their ancestral village. The claimants asserted that the Canadian parent company had failed to prevent abuses of its subsidiary’s security forces of which it had the “management and control,” while it had made public commitments to detailed standards of conduct.59 Ontario’s Superior Court of Justice found that the claim could be admissible if the claimants pled a “novel duty of care,” as the circumstances did
57 UNGPs, supra note 5 at 27–30. 58 The decision should be rendered in April, 2019. See the Supreme Court “Case Details: Vedanta Resources PLC and another (Appellants) v Lungowe and others (Respondents)” (2019), online: Supreme Court UK
154 Windsor Review of Legal and Social Issues Vol. 40 not invoke a duty of care already recognized by the law.60 The Court, citing a test applied in a previous decision of the Canadian Supreme Court, detailed the three conditions that need to be met for the duty of care to be recognized:
1. the harm complained of is a reasonably foreseeable consequence of the alleged breach; 2. there is sufficient proximity between the parties that it would not be unjust or unfair to impose a duty of care on the defendants; and 3. there exist no policy reasons to negative or otherwise restrict that duty.61
The court then applied Canadian law to each of these conditions, ultimately concluding that the facts are sufficient to survive the defendant's motion to 2019 CanLIIDocs 3714 strike.62 First, according to Canadian jurisprudence harm is foreseeable if it is foreseeable that harm might occur in a general way and if the type of damage was foreseeable.63 The court found that the plaintiffs adequately pleaded foreseeability as Hudbay knew, or should have known, that security forces frequently used violence to evict people. Moreover, the defendant’s executives knew violence was performed in previous evictions they had requested, and they were aware that the security personnel were inadequately trained and possessed illegal firearms.64 Second, the court found that there was enough proximity between the parties as “the circumstances of the relationship inhering between the plaintiff and the defendant are of such a nature that the defendant may be said to be under an obligation to be mindful of the plaintiff's legitimate interests in conducting
60 Ibid at para 18. 61 Odhavji Estate v Woodhouse, 2003 SCC 69, [2003] 3 SCR 263 [Odhavji], as cited in ibid at para 57. 62 Choc, supra note 13 at paras 65,70,75 (The Court concluded that the facts were sufficient to survive the defendant’s motion to strike). 63 Ibid at para 59 (Court explained that it must first determine whether the harm was a “reasonably foreseeable consequence of the defendant’s act”). 64 Ibid at para 60–65 (Court described the acts committed by the security forces during the forceful eviction of the local residents). Vol. 40 Windsor Review of Legal and Social Issues 155 his or her affairs.”65 The Court remarked that the parent company was directly in charge of the operations and exercised direct control over the security personnel, which was sufficient to find proximity.66 Third, the Court found that there was no obvious policy reason to restrict the duty of the parent company.67 The Court ultimately found that all three steps of the test were met and a novel duty of care was present. The Choc decision thus marks the first time that a Canadian court has accepted the possibility of civil liability for human rights violations of a parent company for the acts of its subsidiaries in a foreign country.68 Nevertheless, the impact of this decision is nuanced. Indeed, given that it was a decision rendered by a lower court, it cannot be viewed as a precedent for a recognition of a corporate duty of care to respect human rights. Moreover, 2019 CanLIIDocs 3714 the fact that the parent company was deeply involved in the subsidiary’s activities might undermine the possibility to reach similar decisions in other cases where the parent company does not exercise such a high level of control.69 Chandler and Choc both share the fact that the parent companies have assumed a duty of care over the conduct of their subsidiaries, either through their control over the subsidiaries, or through their high level of knowledge of the subsidiaries’ matters and dealings. However, neither case actually posed a general duty of care of the parent company towards the victims of the acts of their foreign subsidiaries.70 This reluctance to recognise a general duty of care has recently been illustrated in the 2017 Ontario Superior Court of Justice decision of Das v George Weston Limited.71 This case emerged following the
65 Ibid at para 66. 66 Ibid at paras 67, 69–70. 67 Ibid at para 74 (Court stated that “a court should be reluctant to dismiss a claim as disclosing no reasonable cause of action based on policy reasons at the motion stage before there is a record on which a court can analyze the strength and weaknesses of the policy arguments”). 68 See Susana C Mijares Pefia, “Human Rights Violations by Canadian Compagnies Abroad: Choc v Hudbay Minerals Inc” (2014) 5:1 UWO L Rev 1. 69 Choc, supra note 15 at paras 60–61. 70 See Gwynne Skinner, “Rethinking Limited Liability of Parent Corporations for Foreign Subsidiaries’ Violations of International Human Rights Law” (2015) 72:4 Wash & Lee L Rev 1769 at 1832–38. 71 2017 ONSC 4129, [2017] OJ No 3542 [Das].
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Rana Plaza disaster caused by the collapse of a factory building in Bangladesh. Several injured workers of the supplier as well as the father of two deceased workers in the collapse, sought to establish the responsibility of Loblaws, one of the clients of the Rana Plaza’s manufacturing factories and Bureau Veritas, Loblaws’ consultant, who was in charge of conducting a social audit of the sub- suppliers in Rana Plaza. The Court considered that Bangladesh was the place where the wrong occurred, concluding that Bangladeshi law should apply.72 As the claim of the plaintiffs was unprecedented in Bangladeshi law, the Court considered English law as a precedent. The Court stated that the claimants did not have a reasonable cause of action against Loblaws, the purchasing company, explaining that the mere foreseeability of harm was insufficient to establish a duty of care, stating: 2019 CanLIIDocs 3714 “it certainly is not plain and obvious that a purchaser of goods does or should have a legal duty of care to the employees of the manufacturer of those goods.”73 The Court also rejected the existence of a fiduciary duty towards the claimants, as it found “there is no case law in Bangladesh, England, Canada, common law countries or the United States, that has recognized a fiduciary duty by a purchaser to a sub-supplier’s employees.”74 Moreover, the Court held that the claimants did not have a proximate enough relationship with Loblaws, the client of their employer, in order to claim the establishment of a duty of care. The Court noted that “there is little to connect Loblaws to the employees of a sub-supplier of goods in Bangladesh any more than there would be to connect Loblaws to the farm workers of a farmer exporting food from the tropics for sale by Loblaws.”75 Therefore, the degree of proximity between the defendant buying company and the claimant played a decisive role in the decision. As for the liability of Bureau Veritas, which had to report to Loblaws about the working conditions in the Rana Plaza, Justice Perell, quoting Lord Atkin in Donoghue v Stevenson (“Donoghue”) found that “acts or omissions
72 Ibid at paras 239 and 272. 73 Ibid at para 524. 74 Ibid at para 578. 75 Ibid at para 528. Vol. 40 Windsor Review of Legal and Social Issues 157 which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief.”76 The Court thus considered that Bureau Veritas had a mere moral duty towards the claimants, which did not amount to a legal duty.77 The Court in this instance similarly found that there was little proximity between the claimants and the consultant to justify the existence of a duty of care, as it stated that “no previous case considers whether a social auditor owes a duty to protect factory workers from structural integrity workers.”78 Yet, this appreciation is debatable. Indeed, the workers were likely the party to benefit most from a thorough examination performed by the consultant. In fact, if the consultant had better performed its duty, one may legitimately think that the harm may have been avoided. This conception of the notion of proximity can be contested. Indeed, as shall be 2019 CanLIIDocs 3714 detailed further in this paper, proximity is deemed to exist between people who are affected by each other’s acts.79 Therefore, the court could (and should) have considered the impact of the negligent report issued by Bureau Veritas on the risks posed to the safety of the workers, as its failure to highlight certain dangers prevented the detection of risks and the possibility to take preventive measures to avoid the occurrence of the harm. Finally, the Court held that “numerous policy factors, negate the existence of a duty of care,” among which “the prospect of indeterminate liability because there is no principled way to draw line between those to whom the duty is owed and those to whom it is not.”80 Here, the Court designated one of the main problems of the duty of care doctrine: its lack of precision. The test is performed on a case by case basis, impeding the establishment of clear rules that would help to better identify the beneficiaries of this duty of care. Yet, the simple fact that a beneficiary has never been recognized as such before should not be an argument to dismiss a claim. Again, consideration should instead be
76 Donoghue, supra note 8 at 580 as cited in ibid at para 524. 77 Das, supra note 71 at para 434. 78 Ibid at para 535 (the judge adopted the arguments provided by Bureau Veritas). 79 Donoghue, supra note 8 at 581. 80 Das, supra note 71 at para 536.
158 Windsor Review of Legal and Social Issues Vol. 40 granted on the actual influence and power that the defendant had to prevent the harm from occurring. Ultimately, this case reveals the limits of the duty of care under its current application. The actual test requires a certain degree of proximity between claimants and defendants in order to be effective and to offer reparation to victims. However, another way to hold parent companies liable is currently being discussed before the Canadian Supreme Court. The British Columbia Court of Appeal decision of Araya v Nevsun Resources Ltd is one of the first lawsuits based on international legal instruments in the context of the corporate duty of care, as it invokes international prohibitions of forced labour, slavery, torture, and crimes against humanity.81 The decision to come on the subject matter and the alleged breaches of international law rules will determine to what 2019 CanLIIDocs 3714 extent Canadian courts can rely on international legal norms to consider the liability of corporations.
III. ASSESSING THE EFFICIENCY OF THE DUTY OF CARE IN ESTABLISHING THE LIABILITY OF PARENT CORPORATIONS a. The Modalities of the Application of a Corporate Duty of Care
Tort liability was originally based on an assessment of individual fault. However, this has progressively changed as objective standards of care were introduced into the law. These objective standards aim to compare a certain situation to a certain benchmark, generally that of a “reasonable enterprise.”82 This benchmark allows the insertion of social expectations in business self regulation. However, this reference to usual business practices can be problematic. Indeed, courts have historically held that a breach of duty cannot be found when the defendant has adhered to normal business practices, which
81 2017 BCCA 401 at para 7, 419 DLR (4th) 631 [Nevsun]. 82 See generally Gert Brüggemeier, Common Principles of Tort Law: A Pre-Statement of Law, (London: British Institute of International and Comparative law, 2004) at 65–80. See also Wolfgang Wurmnest, Grundzüge eines europäischen Haftungsrechts (Heidelberg: Mohr Siebeck, 2003) at 113ff. Vol. 40 Windsor Review of Legal and Social Issues 159 might be difficult to overcome when the corporation is engaging in the same type of relation and activity as other corporations.83 Yet, if most corporations adopt conduct that can lead to harmful results, a corporation should not be able to claim that this widespread practice is an entitlement to pursue wrongful practices. Critiques have been raised concerning the application of the duty of care for infringement of human rights by the subsidiaries of transnational corporations. Indeed, it has been noted by some authors that this duty only concerns parent companies that have a certain knowledge and involvement in the activities of their subsidiaries, but it does not address the problem where the parent has a more separate relationship from the subsidiary but still greatly financially benefits from the activities it performs in a high risk environment.84 2019 CanLIIDocs 3714 It would be paradoxical if corporations paying less attention to the activities of their subcontractors or subsidiaries would be beneficial, as they might not be held liable because of the remoteness of their control, while they still earn substantial financial benefits from the activities of their subsidiaries. I shall now assess the main conditions identified in the case law to establish a duty of care.
i. Foreseeability
The condition of foreseeability aims at ensuring that the defendant had a minimal ability and possibility to anticipate the occurrence of the harm. The condition of foreseeability focuses on the capacity of an objectively reasonable class of
83 See e.g. Texas & P R Co v Behymer, 23 S Ct 622 (US 1903); Shandrew v Chicago St P M & O Ry Co, 142 F 320 at 325–26 (8th Cir 1905). 84 See generally Gwynne Skinner, “Parent Company Accountability: Ensuring Justice for Human Rights Violations” (2015), online: International Corporate Accountability Roundtable
160 Windsor Review of Legal and Social Issues Vol. 40 person to appreciate the risk of harm that his or her activities can pose to others and compare this appreciation with the conduct adopted by the defendant.85 Courts do not try to determine whether the specific claimant could have been foreseen by the defendant as a potential victim of its activities.86 The criteria of foreseeability aims at ensuring that a duty of care is not imposed unjustly on a defendant who could not have expected the occurrence of a certain harm. Since the 1970s, the foreseeability of harm has become a key factor in finding negligence for British courts.87 Foreseeability is also outlined in Principle 18 of the UNGPs, which states: “in order to gauge human rights risks, business enterprises should identify and assess any actual or potential adverse human rights impacts with which they may be involved.”88 In other words, businesses should make reasonable efforts to foresee human rights risks posed 2019 CanLIIDocs 3714 by their activities. Thus, it is the same underlying idea found under the concept of foreseeability in English law and under Principle 18 of the UNGPs. Indeed, this condition requires that the parent corporation exercises due diligence to anticipate and mitigate foreseeable human rights risks. This duty is owed to all third parties that can foreseeably be affected by the corporation’s activities. However, one cannot be blamed to be negligent if the risk was unforeseeable. The European Group on Tort Law defines foreseeability in this context as follows: “the foreseeability of the damage to a reasonable person at the time of the activity, taking into account in particular the closeness in time or space between the damaging activity and its consequence, or the magnitude of the damage in relation to the normal consequences of such an activity.”89 Therefore, liability can only be imposed for harm that could have been avoided had the parent company taken the necessary measures to prevent it.
85 See Haley v London Electricity Board (1964), [1965] AC 778, [1964] 3 WLR 479. 86 Dorset Yacht Co Ltd v Home Office, [1970] UKHL 2, [1970] AC 1004 at 1039. 87 See generally David Howarth, “Many Duties of Care –– Or a Duty of Care? Notes from the Underground” (2006) 26:3 Oxford J Leg Stud 449. 88 UNGPs, supra note 5 at 19. 89 Francesco D Busnelli et al, Principles of European Tort Law (Vienna: Springer, 2005) at art 3:201(a). Vol. 40 Windsor Review of Legal and Social Issues 161
In Unilever, the condition of foreseeability was notably discussed. This case involved claimants who alleged to be victims of ethnic violence carried out by third party criminals following the 2007 Kenyan presidential election in the plantation field owned by Unilever PLC, a company incorporated in England that exploited these fields through Unilever Tea Kenya Limited (“UTKL”), incorporated in Kenya. The High Court, in the initial decision, applied the three- stage test from Caparo to assess the existence of a duty of care.90 The High Court first considered the foreseeability of the harm and held that the violence that occurred was not foreseeable, even if the date of the Kenyan presidential elections was known to the defendants. It was held that the harm was not foreseeable as no similar event had happened before and it could not be foreseen that the Kenyan police would fail to protect the claimants. Therefore, as the harm 2019 CanLIIDocs 3714 was not foreseeable, it was held that it was not fair, just, and reasonable to consider that the English company Unilever had a duty of care. Justice Laing thus considered that the claim was “bound to fail,” which justified the dismissal of English courts’ jurisdiction.91 In 2018, the Court of Appeal confirmed the judgment of the High Court.92 This case confirms the idea that corporate defendants cannot be held liable for consequences that they could not anticipate and prevent.
ii. Proximity
A duty of care requires the existence of proximity between the duty bearer and the victim. As Lord Atkin explained, proximity relates to persons “who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”93 The UNGPs also refer to this condition of proximity. As set out in Principle 18, due diligence should be exercised to protect persons “who are so closely and directly affected” by a
90 AAA & Ors v Unilever PLC, [2017] EWHC 371 at para 79. 91 Ibid at para 107. 92 See Unilever, supra note 53. 93 Donoghue, supra note 8 at 581.
162 Windsor Review of Legal and Social Issues Vol. 40 business activity that a company “ought reasonably to have them in contemplation as being so affected” when it is “directing [its] mind to the acts or omissions” in question.94 Therefore, corporations do not owe a duty of care to everyone, but only to the persons who are at risk because of their business activities. Proximity may be physical, but it may also relate to a pre-existent relationship between the parties; it may also refer to the causal link between the conduct and the harm caused.95 Proximity is therefore heavily influenced by factual circumstances.96 In the English decision of Caparo, Lord Bridge discussed the concept as follows: “there should exist between the party owing the duty and the party to whom it is owed a relationship characterized by the law as one of ‘proximity’ or ‘neighbourhood.’”97 Later, Lord Nicholls provided a 2019 CanLIIDocs 3714 further definition of the notion in Stovin v Wise, stating: “proximity is convenient shorthand for a relationship between two parties which makes it fair and reasonable one should owe the other a duty of care. This is only another way of saying that when assessing the requirements of fairness and reasonableness regard must be had to the relationship of the parties.”98 In several of the cases that were mentioned previously in this paper, a close relationship existed between the parent company and the subsidiary for the court to consider that the condition of proximity was fulfilled.99 In these cases, a close involvement of the parent company in the subsidiaries’ activities was required by the courts. In Sithole & Others v Thor Chemicals Holdings Ltd, a case involving mercury poisoned South African workers, the claimants alleged that the daily supervision of the plant was directed from the United Kingdom
94 UNGPs, supra note 5 at 19–20; Donoghue, supra note 8 at 180. 95 See Myfanwy Badge, “Transboundary Accountability for Transnational Corporations: Using Private Civil Claims” (2006) Royal Institute of International Affairs Working Paper at 9, online:
[W]hether a parent company which is proved to exercise de facto control over the operations of a (foreign) subsidiary and which knows, through its directors, that those operations involve risks to the health of 2019 CanLIIDocs 3714 workers employed by the subsidiary and/or persons in the vicinity of its factory or other business premises, owes a duty of care to those workers and/or other persons in relation to the control which it exercises over and the advice which it gives to the subsidiary company.103
As we have previously seen, the notion of control is very elusive and hard to assess, as there are no clear criteria to indicate what should be relevant factors to establish the exercise of control by a parent company. In the case of Okpabi the claimants had invoked five main arguments to prove that the parent company RDS exercised control over the operations of its subsidiary SPDC, highlighting that: (i) RDS had issued mandatory policies, standards and manuals which should be applied to SPDC; (ii) RDS had imposed mandatory design and engineering practices to SPDC; (iii) RDS has set up a system of supervision to make sure its standards were implemented by SPDC; (iv) financial control was exercised by RDS over SPDC; (v) RDS exercised a high level of oversight over
100 Sithole, supra note 99; Jock McCulloch, “Beating the Odds: The Quest for Justice by South African Asbestos Mining Communities” (2005) 32:103 Rev Afr Pol Econ 62 at 68 [McCulloch]. 101 See Connelly, supra note 17. 102 Lubbe, supra note 19 at 271; McCulloch, supra note 100 at 69. 103 Lubbe, supra note 19 at 271.
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SPDC’s operations.104 However, the majority of the court considered that none of the five arguments presented demonstrated a sufficient degree of control from RDC over SPDC’s operations. Such a view can be criticized, as the above- mentioned elements are relevant to establish a certain influence of the parent company over its subsidiary.105 The notion of control is also relative, as the same case can be appreciated differently by different judges. In fact, in Okpabi, Lord Justice Sales, in his dissenting opinion, considered that the claimants had shown that RDS disposed of sufficient expertise and control regarding the handling of the risks of oil spills in Nigeria, which could meet the criteria described in Chandler to find a duty of care of the parent company. He also noted that the existence of standards imposed by the UK company that should be respected by the rest of the group 2019 CanLIIDocs 3714 amounted to asserting executive power to control the management of the operating companies. Lord Justice Sales also mentioned the reputational and financial concerns that indicated that RDS had the will and intention to exercise power over SPDC.106 Nevertheless, the majority of the Court of Appeal considered that the issuing of mandatory policies and standards was not a strong enough indicator to establish the existence of a duty of care from RDS. English case law has so far issued contradicting decisions that are difficult to reconcile. In fact, in July 2018, a few months after the Okpabi decision, the Court of Appeal acknowledged two situations where parent companies could be held to owe a duty of care: “(i) where the parent has in substance taken over the management of the relevant activity of the subsidiary in place [and] (ii) where the parent has given relevant advice to the subsidiary about how it should manage a particular risk.”107 Therefore, the decisions of the Court of Appeal lack consistency, deeming that issuing mandatory policies is insufficient to establish a duty of care in Okpabi, while admitting the possibility
104 Okpabi Court of Appeal, supra note 47 at para 197. 105 See Claire Bright, “The Civil Liability of the Parent Company for the Acts or Omissions of Its Subsidiary: The Example of the Shell Cases in the UK and in the Netherlands” in Angelica Bonfanti, ed, Business and Human Rights in Europe (London: Routledge, 2019) 212 at 218. 106 Okpabi Court of Appeal, supra note 47 at para 138. 107 Unilever, supra note 53 at para 37. Vol. 40 Windsor Review of Legal and Social Issues 165 to recognize the existence of such a duty of care where the parent company provides relevant advice to its subsidiary regarding risk management. The case law reviewed in this paper has held a parent company liable if it exercises a significant degree of control over its subsidiary, namely Okpabi, Lungowe, and Unilever.108 Yet, more precision would be needed to assess when an exercise of control can be deemed to be substantial enough to generate a duty of care for the parent company.109 From Okpabi, it seems that the amount of money and investment provided by the parent company are the main factors to be taken into account, whereas the arguments detailed by Lord Justice Sales in his dissenting opinion regarded the willingness of the parent company to impose certain standards in order to protect its reputation as convincing evidence of control.110 2019 CanLIIDocs 3714 In Canada, courts consider the fact that the parent company had a certain level of knowledge and involvement in the subsidiary’s actions is sufficient for a direct duty of care to be established.111 Canadian courts thus seem more inclined than UK courts to recognise the existence of a duty of care. However, this criterion seems to set aside the cases where the parent company is moderately involved in the activities of its subsidiaries. This may result in many victims being deprived of any compensation and parent companies remaining free of any responsibility. It also fails to encompass ordering companies or subcontractor relationships. Moreover, the requirement of a certain level of involvement of the parent company implies a high burden of proof for the claimants to prove how the parent company monitored its subsidiary, whereas the claimant might not always have easily access to such evidence.
108 Okpabi Court of Appeal, supra note 47 at para 89; Lungowe Court of Appeal, supra note 35 at para 83; Unilever, supra note 53 at para 37. 109 The question of the necessary factors to establish the existence of a duty of care is key. See Horatia Muir Watt, “Compétence du Juge Anglais en Matière de Responsabilité de la Société Mère Pour les Dommages Causes par sa Filiale à L’étranger“ (2017) Rev Crit DIP 613ff. 110 Okpabi Court of Appeal, supra note 47 at para 138. 111 See Choc, supra note 15 at para 45 (the Court discussed the three situations where the corporate veil may be pierced: “(a) where the corporation is completely dominated and controlled and being used as a shield for fraud or improper conduct; (b) where the corporation has acted as the authorized agent of its controllers, corporate or human; and (c) where a statute or contract requires it”).
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iii. The “Fair, Just and Reasonable” Condition in the United Kingdom and the Public Policy Consideration in Canada
Courts weigh considerations of justice when deciding on a case’s outcome. English courts, for example, consider whether it is “just, fair, and reasonable” to impose duties of care on negligent actors.112 A good definition of the notion of fairness for corporate social responsibility issues, provided by Myfanwy Badge, is:
There is a view that it is not fair and reasonable to allow a company to set up, purchase or control a company operating in a developing country, and potentially to take profits from it whilst enjoying the
protection of limited liability, without imposing a duty on the company 2019 CanLIIDocs 3714 at least to take reasonable steps to protect the workforce or others foreseeably affected by its operations from foreseeable risks, particularly where those affected are vulnerable due to matters such as lack of education and poverty, and even more so where the local legal system may not be adequate to protect them.113
However, the consideration of fairness will vary from a case to the other. In general, fairness is also assessed with regard to the foreseeability and proximity conditions. In fact, the more these two prior conditions are fulfilled, the fairer it is to impose on the corporation a duty of care towards the victim. Discretion is still left to the judges to decide what is regarded as “fair, just and reasonable,” which is not helpful to determine with certainty the prospect of liability of the parties. The interest of the victim is often taken into consideration to determine what is “just, fair and reasonable.” Indeed, in Donoghue, Lord Atkin was concerned about the victim’s practical access to an effective judicial remedy. If the consumer could not sue the manufacturer of a negligently defective product,
112 See e.g. Caporo, supra note 27. 113 See Myfanwy Badge, “Transboundary Accountability for Transnational Corporations: Using Private Civil Claims” (2006) Chatham House: Royal Institute of International Affairs Working Paper at 4, online:
Lord Atkin noted: “not only would the consumer have no remedy against the manufacturer, he would have none against anyone else, for in the circumstances alleged there would be no evidence of negligence against anyone other than the manufacturer.”114 Such a consideration could also be used for corporate wrongs against victims abroad who would be left without a remedy if English courts did not grant them reparation. Nevertheless, in the assessment of what is “fair, just and reasonable,” the judges might also consider what is fair for the defendant, which might undermine the prospects of reparation for the victims. Indeed, the court might consider that it is not fair to consider that a corporation acted negligently or committed a breach if this corporation has acted in accordance with normal business practices. Therefore, there is a risk that a court might consider unfair to 2019 CanLIIDocs 3714 hold a corporation responsible if it acted in a way that is no different than what other actors in the same domain do, even though this behaviour has led to the occurrence of the wrong.115 Canada uses a third condition instead of the “fair, just and reasonable test” to determine the existence of a duty of care. According to the Supreme Court of Canada, a Canadian court should consider “the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally. At this stage of the analysis, the question to be asked is whether there exist broad policy considerations that would make the imposition of a duty of care unwise.”116 Therefore, Canadian courts are more concerned about the coherence of their decision with the rest of their legal system and its principles, rather than by the interests of the parties. However, here again, the perception by a court of what is deemed to be compatible or not with the rest of the Canadian legal system depends on a subjective interpretation that may lead to unequal results. Indeed, taking into account the principle of separate corporate
114 Donoghue, supra note 8 at 582–83. 115 See Radu Mares, “Responsibility to Respect: Why the Core Company Should Act When Affiliates Infringe Rights”, in Radu Mares, ed, The UN Guiding Principles on Business and Human Rights: Foundations and Implementation (Hague: Martinus Nijhoff Publishers, 2012) 169 at 178 [Mares]. 116 Odhavji, supra note 61 at para 51.
168 Windsor Review of Legal and Social Issues Vol. 40 personalities, some courts might consider that it is a matter of public policy to respect this principle.117 On the contrary, some courts might not share such a strict interpretation, or approach public policy differently, leading to a lack of harmonization. In both Canada and the United Kingdom, the high degree of independence left to courts to assess the existence of a duty of care leads to uncertainty for claimants, who are left to rely on the subjective interpretation of the conditions of the duty of care. This lack of clarity and the exercise of this subjectivity can deprive victims from the possibility of assessing their chances of success before taking legal actions.118 Proposals of reform have thus been set forward to increase the degree of responsibility expected from parent corporations. The notion of duty of care is constantly evolving, following the 2019 CanLIIDocs 3714 changes in the case law. A recent UK Supreme Court decision might again modify the considerations to be taken into account for the establishment of the corporate duty of care.
b. The Duty of Care: A Notion in Constant Evolution
The conditions of the corporate duty of care are in constant change and the conditions set up in the Chandler case might soon become obsolete. In the 2018 decision Robinson v Chief Constable of West Yorkshire Police the UK Supreme Court reviewed the necessary conditions to establish the existence of a duty of
117 The concept of corporate separate legal personalities is key in the United States. See Parham v Ryder Sys Inc, 593 F Appx 258 at 261 (5th Cir 2014) (per curiam) (Parham found that under Texas tort law, a duty of care for a negligence claim against a parent company or subsidiary can only be established when the separate entity exercised control over the event that caused the harm). See also Mendez-Laboy v Abbott Labs, Inc, 424 F 3d 35 at 37 (1st Cir 2005) (Mendez- Laboy noted that under the “third party” theory, an action for breach of duty of care by a subsidiary against the parent company is available only if the employee can establish that the parent company assumed, either by express agreement or by implication, the “primary responsibility” for providing industrial safety in the subsidiary’s workplace). 118 Gwynne Skinner, “Rethinking Limited Liability of Parent Corporations for Foreign Subsidiaries’ Violations of International Human Rights Law” (2015) 72:4 Wash & Lee L Rev 1769 at 1829. Vol. 40 Windsor Review of Legal and Social Issues 169 care.119 Even though this case related to police negligence, its rationale could impact future cases involving cross border corporate torts. Writing for the majority, Lord Reed vigorously rejected the three-stage Caparo test, highlighting the fact that no single test could be applied uniformly in all cases to determine the existence of a duty of care. The usefulness of the application of the Caparo test was restricted to situations where “the court is invited to depart from previous authority.”120 As a result, Lord Reed argued for “an approach based … on precedent, and on the development of the law incrementally and by analogy with established authorities.”121 Lord Reed notably highlighted that the third condition established in Caparo regarding considerations of justice and reasonableness was “unnecessary and inappropriate” as “a consideration of 2019 CanLIIDocs 3714 justice and reasonableness forms part of the basis on which the law has arrived at the relevant principles.”122 Lord Reed also considered the situation where no prior relevant precedent could guide courts to hear certain claims. Lord Reed asserted:
In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions. They will also weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable.123
Similarly, in Unilever the Court of Appeal seemed to move away from Chandler, as it considered that the notion of a corporate duty of care should not be treated as a separate test, distinct from general principles of tort law. Lord Justice Sales explained:
119 [2018] UKSC 4, [2018] 2 All ER 1041. 120 Ibid at para 100. 121 Ibid at para 21. 122 Ibid at para 26. 123 Ibid at para 29.
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A parent company will only be found to be subject to a duty of care in relation to an activity of its subsidiary if ordinary, general principles of the law of tort regarding the imposition of a duty of care on the part of the parent in favour of a claimant are satisfied in the particular case. The legal principles are the same as would apply in relation to the question whether any third party … was subject to a duty of care in tort owed to a claimant dealing with the subsidiary.124
Therefore, the notion of a corporate duty of care seems hard to grasp. Indeed, the more recent case law tends to refer to precedent and analogies, however imposing obligations on parent corporations for the wrongdoing of their subsidiaries is a novel concept, which combines both corporate law and tort law considerations. If judges choose to give more weight to corporate law precedents and principles, such as the separation of legal personalities of corporations and 2019 CanLIIDocs 3714 the limitation of liabilities, it may be detrimental to the claims of victims. Thus, common law remedies constitute a double-edged sword. In 1921, Roscoe Pound had explained that common law is “essentially a mode of judicial and juristic thinking, a mode of treating legal problems rather than a fixed body of definite rules [a process of] moulding rules … into accord with its principles.”125 Common law is a dynamic body of law, capable of evolution. While this malleability is a strength of the common law, it can also be a weakness. Indeed, for victims of corporate torts, changes in the conditions of recognising the existence of a duty of care can lead to an uncertain situation. Claimants find themselves dependant on the will of the courts, which in some cases, may prefer placing greater importance on certain corporate law principles, such as limited liability of corporations. Therefore, some clarification will be needed in the future case law to determine the exact conditions under which a duty of care of corporations can be established. The English case law, as illustrated by Lord Justice Sales in Unilever, is attached to the principle of separate legal personalities between a parent company and its subsidiary, as Lord Justice Sales stated: “there is no special doctrine in the law of tort of legal responsibility on the part of a parent
124 Unilever, supra note 53 at para 36. 125 Pound, supra note 12 at 1. Vol. 40 Windsor Review of Legal and Social Issues 171 company in relation to the activities of its subsidiary, vis-à-vis persons affected by those activities. Parent and subsidiary are separate legal persons, each with responsibility for their own separate activities.”126 However, the case law is still unclear as to the conditions required to grant an award for a successful claim relating to a parent company’s duty of care. To this day, there is no clearly established rule as to what conditions should trigger the duty of care of the parent company. The success of each proceedings depends on the specific case. As Lord Bingham has rightfully stated, corporate liability “is a field in which differing conclusions can be reached by different tribunals.”127 This uncertainty leads us to consider what reforms could be undertaken to clarify the notion of duty of care and ease the burden of proof for claimants.
2019 CanLIIDocs 3714 c. Reform Proposals for the Establishment of the Duty of Care i. Establishing a Presumption of Control by the Parent Company over its Subsidiary
As fairness is a consideration to be taken into account to determine the level of care that should be imposed, it has been suggested that, for “fairness” reasons, corporations should be liable when they gain benefits from wrongful acts that affect a community.128 This proposal aims to address situations where the parent company has direct knowledge of its subsidiaries’ activities and benefits substantially from those activities.129 The International Corporate Accountability Roundtable (“ICAR”) nongovernmental organization, called for a parent company and its subsidiaries to be considered a unified economic enterprise when operating in a “high-risk country,” that is, a country where environmental or social adverse impacts are most likely to be encountered. Under this theory, parent companies enjoying benefits from a subsidiary’s economic activity that generated harm to people or
126 Unilever, supra note 53 at para 36. 127 Lubbe, supra note 19 at 276. 128 Mares, supra note 115 at 180. 129 Ibid at 177 (Mares detailed the separation principle as an obstacle because the parent cannot be directly responsible merely for outsourcing per se in a developing country).
172 Windsor Review of Legal and Social Issues Vol. 40 a community, should have to pay to repair the harm caused.130 This proposal also lessens the burden of proof on the claimants and increases their prospects for obtaining redress. However, for such a reform proposal to be taken seriously, it should not impose an excessive burden on economic activities. This is why ICAR suggests that the obligation for parent companies to provide compensation under the “unified economic enterprise” theory should be limited to cases of serious violations of international human rights and serious environmental torts only. Professor Radu Mares suggested a similar idea of reform, considering that a “high-risk” country should be any country where victims cannot have access to effective legal mechanisms to obtain redress.131 According to Professor Mares, where a parent company sets up a separate entity for the purpose of 2019 CanLIIDocs 3714 making a profit, the core company should be held responsible for the subsidiary’s torts under notions of due diligence. Indeed, he asserts that developing business activities in countries with more relaxed labour and environmental laws and norms represent an unreasonable risk, which should be considered as an affirmative wrong under the law. In fact, he explains that the vulnerability and lack of protection of workers and residents in such countries is so great that it is a risk to their safety to develop business activities in those places without taking proper care to ensure environmental and social regulation.132 He adds that there is substantial foreseeability of the risk of harms occurring in such countries, using the example of the resource extraction industry, where the threshold of regulations is set very low.133 Finally, the
130 Gwynne Skinner, Robert McCorquodale & Olivier De Schutter, The Third Pillar: Access to Judicial Remedies for Human Rights Violations by Transnational Business, (Washington: ICAR, December 2013) at 97. 131 Mares, supra note 115 at 169–70 (Mares discussed the questions that arise when determining a standard for due diligence). See also Mares, supra note 115 at 176–78 (Mares argued that the core company’s decision to establish a “separated entity in a dangerous environment (that is a country with permissive regulations)” creates the parent company’s responsibility under the due diligence standard). 132 See ibid at 176–77 (Mares discussed how the parent corporation injures the subsidiary through its own conduct when it instructs the subsidiary to commit wrongful actions). 133 Ibid (the “undeniable fact is that setting up mining operations does create risks of harm for local communities, risks that are more likely and severe when the legal frameworks are weak”). Vol. 40 Windsor Review of Legal and Social Issues 173 introduction of a presumption of liability of the parent company would ease the burden of proof for the claimants, who, as mentioned earlier, do not always have the ability to access evidence showing the control exercised by the parent company over the subsidiary. A softer version of this proposal would be to introduce a sort of vicarious liability for parent companies over their subsidiaries.134 This would amount to a shift in the burden of proof, as it would be up to the parent corporation to prove that it did exercise the necessary control that could have been expected in order not to be held liable. Some proposals have indicated that, on the basis of the accounting law definition of control, controlling companies could be considered to have control: (i) if the company controls the majority of shareholders’ voting rights; (ii) if the company has appointed or has the right to appoint the majority 2019 CanLIIDocs 3714 of the subsidiary’s management; or (iii) if the company has the power to exercise or exercises dominant influence on its subsidiary.135 As mentioned earlier, control can take several forms. Courts have to assess the control exercised by the parent company on a case-by-case basis. Under the current state of the law in the various common law jurisdictions, it is up to the victim to provide satisfactory evidence that a parent company had sufficient control over its subsidiary. This constitutes a very time consuming and costly undertaking. Moreover, claimants do not have access to evidence that is in the realm of the company. However, a precise definition of the notion of control would be difficult to achieve solely from the case law, and it may take years before a sufficient number of cases are decided to specify the circumstances in which control is deemed to exist or not. This is why it has been suggested that a statute may be necessary to reform the possible duty of care of parent companies.
134 Cees Van Dam & Filip Gregor, “Corporate Responsibility to Respect Human Rights vis-à- vis Legal Duty of Care” in Juan-José Alvarez Rubio & Katerina Yiannibas, eds, Human Rights in Business: Removal of Barriers to Access to Justice in the European Union (London, UK: Routledge, 2017) 128. 135 See EC, Directive 2013/34/EU of 26 June 2013 on the Annual Financial Statements, Consolidated Financial Statements and Related Reports of Certain Types of Undertakings [2013] OJ, L 182/19 at art 22(1).
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ii. Establishing a Statutory Duty of Care of Parent Corporations for the Activities of their Subsidiaries
Due to the uncertainty generated by the conditions developed by the common law to establish a duty of care, it has been suggested that concrete examples of what constitutes a duty of care should be provided in statute.136 Indeed, due to the incapacity of the courts so far to adopt a harmonized test to assess the existence of a duty of care of parent companies, the issue could finally be addressed by legislators. The rules incorporated in the new statute could establish that the parent company should be responsible when it orders a subsidiary to operate in a country where it knows or suspects victims will be unable to seek a remedy for 2019 CanLIIDocs 3714 any harm from the subsidiary, especially where the subsidiary is going to be working in high-risk industries, such as the extraction or garment industry.137 This would provide an obligation for corporations to control the activities of their subsidiaries, contrary to the current requirements. In fact, the current duty of care approach taken by courts can be perceived as a disincentive. Indeed, so far, only the companies that were substantially involved in the activities of their subsidiaries have been held to have a duty of care of the acts of the subsidiary. Therefore, companies could interpret this as an implicit encouragement not to exercise any control over the activities of their subsidiaries or subcontractors in order not to be held accountable. Corporations cannot be expected to enforce labour and environmental standards on a pure voluntary basis. Indeed, they might consider these standards as hindering their productivity (in terms of means, time, and money necessary to implement these standards) and they could consider that this would put them at a disadvantage to enforce these standards in comparison to other competitors
136 Meredith Dearborn, “Enterprise Liability: Reviewing and Revitalizing Liability for Corporate Groups” (2009) 97 Cal L Rev 195 at 203 [Dearborn]; Gwynne Skinner, “Beyond Kiobel: Providing Access to Judicial Remedies for Corporate Accountability for Violations of International Human Rights Norms by Transnational Corporations in a New (Post-Kiobel) World” (2014) 46:1 Colum HRLR 158 at 261. 137 Dearborn, supra note 136 at 197. Vol. 40 Windsor Review of Legal and Social Issues 175 who may have chosen not to respect them. Therefore, duty of care standards should be imposed by policymakers. The idea of a statutory duty of care would impose an applicable minimum standard.138 However, the introduction of an objective standard must not lower the diligence requirements for those who possess special knowledge and abilities. Therefore, a differentiation should be made between transnational enterprises with extensive know how, technical and financial resources, and small companies who resort to the help of contractors because they do not have the competence to undertake some parts of the production in the supply chain. The duty of care is a common law notion. In fact, civil law countries have not developed such principles. In France, a certain opening towards the recognition of such a duty seemed to have appeared with the Venel v Areva 2019 CanLIIDocs 3714 decision, which held that a parent company could be considered a co-employer of the subsidiary’s workers and therefore had a duty to ensure that employees were protected against health and safety risks in the workplace.139 Nevertheless, the Court of Appeal of Paris dismissed this first instance decision, considering that Areva, the parent company that held 34% of the shares of Cominak, its subsidiary, neither had a sufficient intermingling of activities, nor enough control of its subsidiary, to be considered a co-employer and therefore could not be held liable for the lack of health and safety measures on the subsidiary’s workplace.140 Some civil law countries have adopted a different approach to tackle the issue of transnational corporate social responsibility.141 Instead of restricting the scope of the duty of care to parent-subsidiary corporate relations, a few civil law countries have chosen to adopt a due diligence duty for corporations in order to ensure that a certain monitoring is undertaken with regards to supply chains of
138 See e.g. Nettleship v Weston [1971] EWCA Civ 6, [1971] 2 QB 691. 139 Tribunal des Affaires de Sécurité Sociale de Melun Paris, 11 May 2012, Venel v Areva (2012) no 10-00924/MN (France). 140 Cour d’Appel de Paris, 24 October 2013, Venel v Areva (2013) No 12/05650 (France). 141 For further discussion on the implementation of due diligence duties in civil law countries, see Adeline Michoud, “Can Soft Words Lead to Strong Deeds? A Comparative Analysis of Corporate Human Rights Commitments’ Enforcement” (2019) Seattle J for Soc Just [forthcoming].
176 Windsor Review of Legal and Social Issues Vol. 40 multinational companies. Common law countries should also consider the adoption of a similar general due diligence duty for multinational corporations in order to promote prevention and to foster corporate accountability.
IV. CONCLUSION
Recent case law developments in the United Kingdom and in Canada have started defining the concept of a duty of care for parent companies relating to the wrongs caused by their subsidiaries. This concept is particularly relevant and raises an interesting potential to tackle today’s global corporate social responsibility issues. However, the criteria for the application of this duty of care remain to be refined, as the conditions to fulfil the test are still vague in both 2019 CanLIIDocs 3714 jurisdictions, hence leaving the final decision to the discretion of judges. In fact, the decisions of tribunals decide on a casuistic basis, which goes against the predictability and legal security that victims of corporate wrongs should be entitled. This lack of precision in the criteria identified by the courts thus impedes the establishment of clear rules that would help to better identify the beneficiaries of this duty of care. In addition, the current notion of duty of care seems to solely apply to companies that are substantially involved in the activities of their subsidiaries. Therefore, the current approach may be perceived as an implicit encouragement to corporations not to exercise any control over the activities of their subsidiaries in order to evade any kind of responsibility. Furthermore, the conditions that are currently set to establish such a duty of care require a high burden of proof on the claimants who need to show a certain level of involvement of the parent company in the activities of the subsidiary. An efficient solution to this issue would be to introduce a presumption of control of the parent company over the subsidiary to cure the current difficulties encountered by claimants. This reversal of the burden of proof could hence contribute to lowering the inequality that exists between individual victims and companies. To this day, the concept of duty of care and the contours of its applicability are quite ill defined. Therefore, more case law from common law courts is needed to better clarify the applicability and scope of the corporate duty of care. It might take several years, to obtain further guidance from higher Vol. 40 Windsor Review of Legal and Social Issues 177 common law courts. This is the reason why some proposals have asserted that statutory reform could preserve the duty of care of parent corporations in law and would notably establish a presumption of control of these parent companies over their subsidiaries. If a judicially or statutorily established duty of care were to be adopted by all common law countries, it would cover more than 40% of the world’s largest enterprises.142 The issue of corporate social responsibility is increasingly gaining awareness. The ball is now in the courts of common law jurisdictions and their legislations to tackle this challenge.
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142 Liyan Chen, “The World’s Largest Companies”, Forbes (6 May 2015) online:
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WAIT AND SEE: REGULATING ONTARIO’S LITIGATION LENDING AND COMMERCIAL LITIGATION FUNDING MARKETS
Josh Tayar*
I. INTRODUCTION
“As long as justice has existed, there have been those who have struggled to access it.”1
Over the last number of years, commercial litigation funding (“CLF”)—a form
of third-party funding (“TPF”)—has caught the attention of lawyers, law 2019 CanLIIDocs 3714 societies and academics as one possible solution to overcome the existing barriers to justice. Although CLF has been in place for a number of years in many countries including Australia, the United Kingdom and the United States, recent Canadian court decisions have finally opened the door to this type of legal financing for Ontarians. CLF proponents believe that CLF promotes access to justice by leveling the playing field,2 which otherwise “pairs the haves against the have nots” given the high costs involved in complex litigation.3 As Lord Neuberger observed, CLF “has come full circle”: anyone concerned with the promotion of the rule of law should “positively … support the development of litigation funding, as a
*Josh Tayar is a JD Candidate at the University of Toronto, expected to receive his degree in 2019.
1 Action Committee, “Access to Civil and Family Justice: Roadmap for Change” (October 2013) at i, online (pdf): Canadian Forum on Civil Justice
4 Lord Neuberger, “From Barretry, Maintenance and Champerty to Litigation Funding” (Delivered at Gray’s Inn, May 8, 2013) at para 48, online (pdf):
180 Windsor Review of Legal and Social Issues Vol. 40 with litigation loans. It is the author’s view that existing market forces, case law and consumer protection statutes in Ontario adequately protect funded parties.
II. THIRD PARTY FUNDING DEFINED
TPF is a form of financing whereby the funder, who is not a party to the lawsuit, provides the financial support necessary to allow the claimant to pursue legal action. Historically, TPF fell under statutory prohibitions against maintenance10 and champerty.11 These statutory restrictions were first enacted in England in 130512 and in Ontario in 1897.13 Although the English statutes were repealed in 1967, the Canadian statutory restrictions remain on the books. Canadian courts continue to consider whether a funder has an “improper motive” or is a “proper 2019 CanLIIDocs 3714 intervener”,14 and whether the contract should, therefore, be deemed unenforceable as it violates the statute or public policy. A number of forms of litigation financing currently fall under the TPF umbrella. These include:
1) Contingency fee agreements, which are entered into by a lawyer and her client whereby the lawyer is only paid if the client is successful (either at trial or through settlement);15 2) Public funding through legal aid, Ontario’s Class Proceedings Fund16 and other pro bono and public advocacy organizations;
10 “Maintenance” is the act of supporting litigation in which one has no legitimate interest: see HG Beale, Chitty on Contracts, 32nd ed (London, UK: Thomson Reuters UK, 2015) at para 16-059 [Beale]. 11 “Champerty” is the act of maintaining litigation for the purpose of taking a share of the litigant’s proceeds: ibid at para 16-063. 12 Statute of Conspirators (UK), 1305, 33 Edw 1. 13 An Act Respecting Champerty, RSO 1897, c 327. 14 Jessica Gill & Rachel A Howie, “Third Party Funding in Arbitration” (2017) 26:1 Can Arbitration & Mediation J 15. 15 Currently, the Solicitors Act, RSO 1990, c S.15, and Contingency Fee Agreements, O Reg 195/04, impose strict requirements in regulating lawyers who enter into contingency fee agreements relating to agency costs and conflicts of interest. Although there is no fee cap, courts will generally not permit lawyers to take more than 50% of the proceeds. 16 The Class Proceedings Fund provides financial support to approved class action plaintiffs for legal disbursements and indemnifies plaintiffs for costs that may be awarded against them Vol. 40 Windsor Review of Legal and Social Issues 181
3) Legal expenses insurance, which is considered “insurance” within the meaning of the Insurance Act.17 Accordingly, a licence is required in order to sell it. Like any other insurance product, premiums are paid by the insured who is thereby entitled to have her legal fees paid to the extent of her coverage;18 4) Litigation loans are generally made available to plaintiffs who need money for daily living expenses pending the outcome of their litigation. These loans are nonrecourse; they prescribe a fixed interest rate and are paid out only in the event of a successful legal action. As can be seen in Table 1, the interest rate of these loans is often extremely high; and 5) CLF, which is a niche market of legal financing whereby funders view actions as investments; they conduct substantial due diligence before making investment decisions with profit maximization as their primary objective.19 Contracts are 2019 CanLIIDocs 3714 extensively negotiated and terms may include funding for all or part of the expenses, including disbursements and adverse party costs awards. These agreements are nonrecourse, and most often the funder will receive a specified percentage of any lawsuit proceeds. Funders can reasonably be expected to weigh their lack of control over the litigation strategy, the information asymmetry between the contracting parties, and all other risks when negotiating the contractual terms. Deals, however, are usually structured to ensure that the financial interests of the funder and funded party are aligned (i.e. the funded party retains a strong financial incentive to produce written evidence, provide testimony, assist the lawyers in the preparation of the case, etc.).20 In Ontario, CLF is still a relatively new phenomenon; there are only a few CLF funders carrying on business as such. While there have been some concerns about the practice of a non-party covering costs awards, expert fees, disbursements or even the full expense of the
in funded proceedings. A 10% levy is imposed on any proceeds of funded proceedings: see The Law Foundation of Ontario, “Class Proceedings Fund” (last visited 21 March 2019), online: The Law Foundation of Ontario
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litigation, the few decisions in Canada in this area stand for the proposition that there is no general prohibition against it.
III. SOCIO-ECONOMIC EFFECTS a. Access to Justice
In recent years, the societal concern of access to justice has become paramount. The ability of a party to proceed with litigation and protect their rights is a function of how much disposable income they have available. Intuitively, one can assume that access to justice can be improved by taking the cost burden away from the litigant.21 In many cases, cost constraints may prevent some plaintiffs from bringing meritorious suits.22 The decision to file a suit is often based on whether 2019 CanLIIDocs 3714 the investment in litigation will yield positive net returns; however, negative returns may reflect that meritorious claims are not pursued where the plaintiff lacks the resources to advance the action properly or at all.23 Therefore, CLF may increase the number of meritorious claims pursued. There are some who believe CLF might entail the negative externality of increasing unmeritorious litigation.24 From that perspective, the consumers who pursue the funding “will tend to be more willing to accept alternative litigation funding . . . the less optimistic they are about the financial prospects of their legal claim.”25 Empirical research, however, has not found any evidence to support this theory,26 and of course, if the litigant is not optimistic, it is not likely that a funder will finance their claim. In Ontario, most of the litigants who are unable to access justice require funding for problems relating to family, housing, employment,
21 Anthony Niblett & Albert Yoon, “Unintended Consequences: The Regressive Effects of Increased Access to Courts” (2017) 14:1 J Empirical Leg Stud 5 at 5. 22 Yoon, supra note 3 at 668. 23 Ibid. 24 Trebilcock, supra note 19 at 75. 25 Ibid at 66 [footnotes omitted]. 26 Hodges et al, supra note 8 at 133. Vol. 40 Windsor Review of Legal and Social Issues 183 criminal/highway traffic, personal injury and debt.27 However, a review of the data reflects that CLF funders are generally not interested in these types of cases (see Table 2 in “Appendix”). Surveys have shown that the average CLF claim value is in excess of $30,000,000.28 These funders are accountable to their investors and are accordingly motivated by the bottom line rather than the public good. However, there are a few instances where access to justice may converge with returning a profit.29 For example, in Companies’ Creditors Arrangement Act proceedings there are often groups of creditors who cannot afford to fight for their rights. CLF can provide these creditors access to justice: this appears to be confirmed by research that found that 46% of IMF Bentham Limited’s30 cases are insolvency-related.31
2019 CanLIIDocs 3714 b. Impact on the Court System
Basic economics dictates that if the cost burden on litigants is reduced through a CLF market, then more claims will be filed.32 Empirical research has borne this out.33 Empirical researchers also found that a CLF market can cause greater backlogs in the courts, with corresponding increased expenditures required for the operation of the court system.34 However, they noted that this may be a
27 Roy McMurtry et al, “Listening to Ontarians: Report of the Ontario Civil Legal Needs Project” (Toronto: The Ontario Civil Legal Needs Project Steering Committee, 2010) at 696. 28 Burford Capital, “Barometer: 2017 Litigation Finance Survey”, Burford Capital (2017), online (pdf):
184 Windsor Review of Legal and Social Issues Vol. 40 transitory effect of the entry of CLF funders into a new market: “[t]he expectation would be that once defendants recognize the increased likelihood of litigation and the greater resources held by plaintiffs, they would be more likely to settle.”35 In turn, a higher settlement rate would expectedly decrease court congestion.
c. Other Welfare Effects
More litigation is not per se normatively good or bad; more lawsuits could result in more rights vindicated, more injured parties compensated, and more tortious actors deterred.36 As with the other externalities of CLF, there is no definitive research on overall welfare effects. 2019 CanLIIDocs 3714 It has been theorized that, in the context of settlement, CLF may help increase the value of a plaintiff’s claim to a level that more accurately reflects the merits of the case.37 In contrast, others have claimed that funded parties are likely to reject many fair settlement offers because they must recover enough money from a settlement to ensure recovery for both themselves and the funder.38 Still, others have theorized that funders seek to settle cases quickly.39 Another benefit of CLF might be that the increase in available funding to pursue legal actions could allow formerly budget-constrained law firms to
35 Ibid at 1107. 36 Michael K Velchik & Jeffery Zhang, “Islands Of Litigation Finance”, Discussion Paper No 71 (2017) Center for Law, Economics and Business Fellows’ Discussion Paper No 71 at 32, online (pdf): Harvard Law School
IV. EXISTING LEGAL AND MARKET CONTROLS
Presently, market forces and existing legal controls constrain the CLF industry. Supply and demand affect pricing and legislation protects consumers. Civil lawsuits, alleging that particular CLF agreements are champertous, usurious, or vitiated by fraud, have created a precedent as to what will and will not be binding.
a. Statutory Protections 2019 CanLIIDocs 3714
Opponents of CLF claim that funders typically charge excessive “interest” rates and that many consumers are vulnerable, having inferior bargaining power and few alternative options for bringing suit.41 Funding arrangements in such cases raise ethical issues,42 as they can leave consumers with little or no return after receiving a “successful” legal outcome.43 According to the Supreme Court of Canada, section 347 of the Criminal Code44 “created Canada’s first general anti-usury provisions since
40 Ibid at 64. 41 Victoria Shannon, “Recent Developments in Third-Party Funding” (2013) 30:4 J Int Arb at 443 at 448 [Shannon]. 42 Thurbert Baker, “Paying to Play: Inside the Ethics and Implications of Third-Party Litigation Funding” (2013) 23:1 Widener LJ 229 at 233. 43 Below note 53 at para 58. 44 Criminal Code, RSC 1985, c C-45, s 347 provides: Criminal interest rate 347. (1) Despite any other Act of Parliament, everyone who enters into an agreement or arrangement to receive interest at a criminal rate, or receives a payment or partial payment of interest at a criminal rate, is … guilty of an … offence. (2) In this section: “criminal rate” means an effective annual rate of interest calculated in accordance with generally accepted actuarial practices and principles that exceeds sixty per cent on the credit advanced under an agreement or
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Confederation.”45 Before then, “lenders and borrowers enjoyed absolute freedom under federal law to agree upon any rate of interest, subject only to the contractual restraints imposed at common or civil law and the special disclosure requirements arising under the Interest Act.”46 The expansive definition of interest in section 347 includes all forms of charges paid or payable for the advancement of credit. If the rate exceeds 60% annually, it is deemed extortionate and criminal. All forms of interest and fees charged under litigation loans fit within this definition.47 As can be seen in Table 1, Ontario’s litigation lenders are cognizant of this ceiling; however, American lenders use terminology in their loan agreements that allow them to circumvent such statutory regulations in their respective jurisdictions.48 Moreover, in Ontario, the Consumer Protection Act49 and Unconscionable Transactions Relief Act50 2019 CanLIIDocs 3714 provide further regulatory protection in the area of litigation loans.51
arrangement; “interest” means the aggregate of all charges and expenses, whether in the form of a fee, fine, penalty, commission or other similar charge or expense or in any other form, paid or payable for the advancing of credit under an agreement or arrangement, by or on behalf of the person to whom the credit is or is to be advanced, irrespective of the person to whom any such charges and expenses are or are to be paid or payable, but does not include any repayment of credit advanced or any insurance charge, official fee, overdraft charge, required deposit balance or, in the case of a mortgage transaction, any amount required to be paid on account of property taxes. 45 Garland v Consumers’ Gas Co, [1998] 3 SCR 112 at para 23, 165 DLR (4th) 385 [Garland]. 46 Ibid. 47 An argument could be made that any percentage share earned by a CLF funder from the proceeds of litigation may fall within this definition as well. 48 “Litigation Funding: What You Need to Know” (last modified 2019), online: Covered Bridge Capital
b. The Judiciary and the Common Law
In Giuliani v Halton (Regional Municipality), Justice Murray refused to award the interest payable under a litigation loan agreement with Lexfund Inc.52 Lexfund’s loan purportedly had an interest rate of 51%; however, the total interest rate was in excess of 60% when including the additional lender fees pursuant to section 347 of the Criminal Code.53 Justice Murray held that it would be unconscionable, usurious and could bring the administration of justice into disrepute to condone such predatory lending practices.54 Moreover, in Gnyś v Narbutt,55 Justice Thorburn rescinded litigation loans with an effective annual interest rate of 19.5% on the basis that they were found to be unconscionable.56 CLF, however, should not be conflated with litigation loans. Ontario 2019 CanLIIDocs 3714 courts have been reviewing CLF for a number of years in the context of class actions (see Table 3 in “Appendix”); however, single plaintiff commercial litigation is likely to be a growth area. In June 2015, Justice McEwen in Schenk v Valeant Pharmaceuticals International Inc (“Schenk”) concluded that CLF was permissible in single party commercial litigation.57 Initially, Justice McEwan would not have approved an arrangement that could have seen the funder receive—in that case—more than 50% of any award or settlement, holding that the common law prohibition on champerty and maintenance must be considered upon judicial review of any proposed CLF agreement.58 The terms of the CLF agreement were later revised and accepted by the court.59
52 2011 ONSC 5119, 19 MVR (6th) 282. 53 Ibid. 54 Ibid. 55 2016 ONSC 2594, 2016 CarswellOnt 7920. 56 Ibid at 94; but see Lexfund v Ferro et al, 2016 ONSC 4113, 2016 CarswellOnt 9941, where the Court found that interest charged at 19.5%–24% compounded monthly was not unconscionable. 57 2015 ONSC 3215 at para 8, 74 CPC (7th) 332 [Schenk]. 58 Ibid. 59 “Redress Makes Breakthrough for Litigation Funding in Canada”, Redress Solutions (2 July 2015), online (pdf):
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In Ontario, judges have generally required that CLF agreements be promptly disclosed and approved by the court,60 particularly in class actions. The courts understand that in the case of a single party action, funders will likely seek approval in advance as well.61 Absent court approval, funders will likely be hesitant about advancing funds given the possibility of a legal challenge to their contractual right to proceeds following successful litigation. In some of these actions, courts have not only confirmed the fee to be received by the funder but also addressed various practical and ethical concerns that could arise. Issues relating to confidentiality and discoverability have been brought to the forefront. Funded parties may be reluctant to share confidential information with funders because existing rules could imply a waiver of the litigation or solicitor-client privilege, which otherwise would have protected that 2019 CanLIIDocs 3714 information from discovery.62 However, most scholars are of the opinion that solicitor-client privilege and litigation privilege will protect documents and information shared by a funded party and its counsel with a CLF funder.63 Additionally, communications between a client or prospective client and a funder may also be protected by contractual terms of non-disclosure64 and common interest privilege.65 In the context of discovery, CLF funders arguably should not be able to access the opponent’s documents. In Schenk, however, Justice McEwen concluded that because the funder had attorned to the jurisdiction of the Court, it would be bound by the deemed undertaking rule and therefore could also have access to documents disclosed in discovery.66
60 See Bayens v Kinross Gold Corporation, 2013 ONSC 4974, 75 CPC (7th) 158 [Bayens]; Berg v Canadian Hockey League, 2016 ONSC 4466, 89 CPC (7th) 328. 61 Schenk, supra note 57; but see Seedlings Life Science Ventures, LLC v Pfizer Canada Inc, 2017 FC 826, 152 CPR (4th) 319, where a patent infringement claim was brought to the Federal Court, which held that the Court did not have jurisdiction to approve the CLF agreement. This decision has thus thwarted the approval process in respect of disputes that are brought in the Federal Court. 62 Trebilcock, supra note 19 at 67. 63 Bentham IMF, “Litigation Funding Roundtable: The Canadian Perspective”, Bentham IMF (September 2016) at 6, online (pdf):
These issues are not unique to CLF agreements. The trilateral relationship of insurer, insured and lawyer demonstrate that the common law can successfully address situations where a non-party to the litigation has an interest.67 Although a myriad of hypothetical situations can be anticipated where the CLF funder could take inappropriate advantage of its position (e.g., a funder could fund both plaintiff and defendant in order to gain access to and exploit the defendant’s information and legal strategy,68 use confidential information acquired in one proceeding against a former client in a subsequent proceeding,69 etc.), such improprieties are not any more likely to arise than in the insurer/insured setting.70 CLF agreements are also subject to general contract principles and the duty of good faith;71 contractual provisions can specify appropriate remedies for 2019 CanLIIDocs 3714 failure to duly perform the contract (e.g., liquidated damages clauses). Finally, a funder’s contractual obligation to pay any future adverse costs orders could be illusory if the funder lacks adequate capital (this could leave the funded party with a significant liability or the opponent with a significant loss);72 the courts have addressed this risk through security for costs orders.73
67 John Walker, “Policy and Regulatory Issues in Litigation Funding Revisited” (2014) 55:1 Can Bus LJ 85 [Walker]. 68 Australia has dealt with this issue by requiring all CLF funders to have a conflict of interest policy in place: see e.g. Wayne Attrill, “The Regulation of Conflicts of Interest in Australian Litigation Funding”, IMF Australia Ltd (August 2013) at 3, online (pdf):
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c. Self-Regulation
Many CLF funders are large corporations that carry on business internationally,74 are accountable to investors and desire to promote a public view of best practices. In that regard, large CLF funders in the United Kingdom and litigation lenders in the United States have formed and maintained self- regulating organizations. In the United Kingdom, the Civil Justice Council created the voluntary Code of Conduct for Litigation Funders (the “Code”). Members of the Association of Litigation Funders of England and Wales (“ALF”), a self- regulating body, undertake to abide by the Code, which covers matters of capital adequacy, approval of settlements, and control relating to the litigation strategy, 2019 CanLIIDocs 3714 among other things. The ALF hopes that lawyers will only recommend ALF members to their clients who seek funding. The American Legal Finance Association (“ALFA”) provides a code of conduct for litigation lenders only (CLF is specifically excluded) in the United States. ALFA’s goal is for its members to maintain the highest ethical standards; ALFA has designed a set of guidelines to achieve that.
d. The Legal Profession
Lawyers are in the best position to supervise the conduct of their clients’ funders. There is some concern, however, that pressures exerted by profit-driven funders can induce self-dealing lawyers to cede control of the litigation to the funder.75 This issue of self-dealing is not exclusive to CLF. It presents itself whenever a client first walks into her lawyer’s office and asks whether a lawsuit (to be initiated by the lawyer charging a fee) should be pursued.76 Presently, there are instances where lawyers are permitted to have interests that present a risk to the lawyer’s independence. For example, lawyers represent insured defendants and
74 See Table 2 in “Appendix”. 75 Kalajdzic, supra note 2 at 9. 76 Anthony J Sebok, “Litigation Investment and Legal Ethics: What Are The Real Issues?” (2014) 55:1 Can Bus LJ 111 at 129. Vol. 40 Windsor Review of Legal and Social Issues 191 yet are compensated and substantially controlled by insurance companies. Lawyers may also enter into contingency fee agreements; substituting a CLF agreement for a contingency fee agreement might actually enable lawyers to act more faithfully to their clients by separating their competing roles as investor and advocate. Some argue that CLF will promote ethical behaviour by connecting the interests of the funded party to those of a sophisticated funder who will exercise an oversight function vis-à-vis the lawyer.77 Empirical research has found that a strong funder-law firm relationship can produce many other benefits. As the funder learns more about a law firm’s skills and trustworthiness, the funder becomes more reliant on the law firm’s recommendations to fund cases, even those involving high-risk, thus decreasing the funder’s case screening expenses 2019 CanLIIDocs 3714 and, in turn, its required rate of return.78 Some have argued that CLF will bring the administration of justice into disrepute because the monetary inflow can come from disreputable private investment firms.79 Even if one were to assume that some funders behave less than ethically, “bad behaviour” is not specific to the CLF industry. Finally, and most importantly, lawyers who are already subject to rules of professional conduct relating to integrity,80 conflicts of interest81 and the administration of justice82 should ultimately be responsible to ensure their clients are protected within this tripartite relationship.83
77 Kalajdzic, supra note 2 at 1–2. 78 Xiao, supra note 33 at 127. 79 Velchik & Zhang, supra note 36 at 35. 80 Law Society of Ontario, Rules of Professional Conduct (2015), s 2.1, online: Law Society of Ontario
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V. AROUND THE WORLD: WHAT CAN BE LEARNED?
As CLF represents a relatively new avenue in Canada, other countries’ experiences may be instructive, including the United States, Australia and the United Kingdom, which have the most CLF activity and jurisprudence.84 Any comparative analysis of CLF, however, must take into account each jurisdiction’s unique legal culture as well as their specific social objectives.85 For example, “loser pays” rules have a chilling effect on litigation rates and complicate risk assessment for funders.86 Moreover, jurisdictions have different social objectives and thus reach different decisions regarding the balance to be struck between encouraging litigation and the extent to which conflicts of interest and risks of abuse should be countenanced.87 2019 CanLIIDocs 3714
a. United States
Since 2013, significant amounts of legislation have been enacted in various US states aimed at regulating CLF in a variety of different ways.88 Several states are refining the common law doctrines of maintenance and champerty through the judiciary, while other states are abolishing them or dismissing them as irrelevant to CLF.89 Although strong consumer protection regulations have been put in place for litigation loans, many American lenders cunningly describe themselves as CLF funders. They have made a concerted effort to call their loans “advances” to avoid the regulations.90 Ontario’s Consumer Protection Act specifically
84 Shannon, supra note 41 at 444. 85 Jasminka Kalajdzic, Peter Cashman & Alana Longmoore, “Justice for Profit: A Comparative Analysis of Australian, Canadian and U.S. Third Party Litigation Funding” (2013) 61:2 Am J Comp L 93 at 93. 86 Hodge et al, supra note 8 at 47. 87 Ibid at 131. 88 Shannon, supra note 41 at 443. 89 Maya Steinitz, “Whose Claim is This Anyway? Third-Party Litigation Funding” (2011) 95:4 Minn L Rev 1268 at 1289. 90 The New York Banking Law provides that interest on a loan cannot exceed 16% if the loan is less than $250,000. For a loan between $250,000 and $2,500,000, 25% can be charged. There is no interest rate cap if the loan is greater than $2,500,000. As TPF is nonrecourse, it is Vol. 40 Windsor Review of Legal and Social Issues 193 defines “advance”91 as a loan contemplated by the Consumer Protection Act such that this behaviour would not be countenanced. Litigation funding is growing rapidly in the United States. Presently, 32% of American lawyers have indicated they have used litigation funding and half of those who have not used it yet expect to do so within the next two years.92
b. Australia
CLF has grown substantially in Australia largely due to the fact that lawyers are prohibited from charging contingency fees. As a result, CLF for class action lawsuits has increased from 1.7% between 1997 and 2002 to 46% between 2012 and 2017.93 In a recent survey, 40% of Australian law firms had used litigation 2019 CanLIIDocs 3714 funding and more than half of those which had not yet used funding expected to do so within the next two years.94 Many Australian courts have found that there is no public policy objection to CLF. Moreover, there is no legislation limiting fees funders can charge. Courts have gone so far as to permit funders to exert partial control over litigation strategy decisions (e.g., selection and firing of counsel and settlement decisions).95 Presently, CLF funders are exempt from the regulations relating to financial services but they must have a system in place to manage conflicts of interest. Since 2014, there has also been a pending recommendation by the Productivity Commission to require funders to be considered financial service
not subject to usury laws; the “safe harbour” provision exempts any transaction in excess of $500,000 from the prohibition against champerty. See Steven Friel & Jonathan Barnes, Litigation Funding: Getting the Deal Through, 2nd ed (London, UK: Law Business Research, 2018) at 72. 91 CPA, supra note 49. See section 66 for definition of “advance”. 92 Burford Capital, supra note 28. 93 Gordon Grieve et al, “Litigation Funding” (December 2018), online: Getting the Deal Through
194 Windsor Review of Legal and Social Issues Vol. 40 providers under the Corporations Act 2001 obliging them to hold adequate capital to meet financial liabilities to consumers (including costs awards) and comprehensive disclosure obligations. No governmental action on this issue has been taken as yet.96
c. United Kingdom
English courts have relaxed the common law rules on champerty and maintenance. In his 2010 report on litigation costs, Lord Jackson stated that “the question whether there should be statutory regulation of third party funders by the [government] ought to be revisited if and when the third party funding market expands.”97 At the time Jackson believed self-regulation was sufficient 2019 CanLIIDocs 3714 and Lord Keen of Elie confirmed this position in 2017. Self-regulation remains in place today.98 In the United Kingdom, 41% of lawyers report using CLF funding and 54% of those who have not yet used it expects to do so within the next two years.99
VI. CONCLUSION
There is abundant research on CLF examining its potential benefits and harms and proposing various regulatory frameworks. Most of the research is theory based and replete with differing views among scholars. Accordingly, proposals for adopting certain regulatory frameworks (which attempt to maximize the benefits and minimize the negative externalities of CLF) are based on conjecture. The actual effects on aggregate welfare are difficult to measure empirically and detailed information on all types of CLF funded claims, which
96 Grieve et al, supra note 93 at 10. 97 Lord Justice Jackson, “Third Party Funding or Litigation Funding: Sixth Lecture in the Civil Litigation Costs Review Implementation Programme” (Delivered at The Royal Courts of Justice, 23 November 2011), online (pdf): Association of Litigation Funders
100 Robert G Bone, “Modeling Frivolous Suits” (1997) 145:3 U PA L Rev 519 at 528. 101 Xiao, supra note 33 at 2. 102 Ibid. 103 Ibid. 104 Hodge et al, supra note 8 at 131. 105 CPA, supra note 49. 106 Todd J Zywicki & Joseph D Adamson, “The Law and Economics of Subprime Lending” (2009) 80:1 Colorado L Rev 1 at 2–4. 107 McIntyre Estate v Ontario (AG), 61 OR (3d) 257, 2002 CanLII 45046 (Ont CA) at para 65.
196 Windsor Review of Legal and Social Issues Vol. 40 has led to abuses that the courts cannot control.108 In other jurisdictions where the use of CLF appears to be growing, the respective governments have not found it necessary as yet to impose further regulation. Government intervention in Ontario, therefore, should only be considered if the judiciary appears to be incapable of addressing future disputes or additional empirical research on the effects of CLF determines that it is necessary. 2019 CanLIIDocs 3714
108 Veljanovski, supra note 32 at 446. Vol. 40 Windsor Review of Legal and Social Issues 197
Appendix Table 1: Litigation Lenders
Loan amount Interest rate Other fees Canada BridgePoint Standard loan: 18-24% $375 (varies) Financial Services $7500 compounded semi- Inc.109 annually Rhino Legal Minimum loan: In Ontario: 1.99% $175 Finance Inc.110 $100 per month; No maximum Effective rate: 31.1% per year Easy Legal Finance 10-15% of claim 2% per month $375 Inc.111 value
Seahold Not available Effective rate: Not Available 2019 CanLIIDocs 3714 Investments Inc.112 32.923% United States Thrivest Funding “Advance” not a Discount rate: Underwriting fee LLC113 loan determined case-by- varies case Covered Bridge “Investment” not a Quote: based on Not Applicable Capital LLC114 loan lawyers’ affiliation with legal organizations Plaintiff Legal “Advance” not a Discount rate: Not Applicable Funding115 loan determined case-by- case
109 “Everything you need to know about Settlement Loans” (2018), online: BridgePoint Financial Services
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Table 2: Commercial Litigation Funders
Actions Jurisdictio Minimum In Self- Types of funded ns claim busines regulate claims in 2017 value s since d IMF Only 5 Australia, $10,000,00 1994; No Commerci Bentham cases USA, 0 Publicl al Limited116 approved; Canada, y listed litigation 19 cases Hong Kong, since in term Singapore 2001 sheet stage; 139 cases were subject to
due 2019 CanLIIDocs 3714 diligence review Therium Not USA, UK, $5,500,000 2009 Yes Commerci Capital available Norway al Manageme litigation nt Limited117 Burford 59 cases UK, USA, $2,000,000 2009 Yes Complex Capital accepted; Guernsey commercia Ltd.118 1561 l litigation cases considere d Litigation Active: Australia $5,000,000 1998; No Complex Capital 11 Publicl commercia Manageme Pending: y listed l litigation nt 29 since Limited119 2016 Woodsford Not UK $5,500,000 2010 Yes Commerci Litigation available al Funding120 litigation;
116 IMF Bentham, “Shareholders” (2019) online: IMF Bentham
high value divorce Juridica 2 cases USA, UK, $25,000,00 2007 No Commerci Investments active Guernsey 0 al Limited121 litigation; No personal injury, product liability or class action cases Delta Not USA $10,000,00 2011 No Commerci Capital available 0 al Partners122 litigation Lexfund Not Canada $20,000,00 2004 No Commerci 2019 CanLIIDocs 3714 Manageme available 0 al nt Inc.123 litigation
121 Juridicain Investments, online:
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Table 3: Court Reviewed Funder’s Fees
Case Fee structure Approved sought Claims Funding Metzler Investment 7% share uncapped No International GMBH v. Gildan to insure for any Activewear Inc., adverse costs awards 2009 CanLII 41540 (ONSC) (Class Action) Claims Funding Dugal v. Manulife 7% share capped at Approved, but International Financial $5,000,000 – before minor contract Corporation, 2011 class certification amendments ONSC 1785 7% share capped at required (Class Action) $10,000,000 – after
class certification 2019 CanLIIDocs 3714 (To insure for any adverse costs awards)
BridgePoint Fehr v. Sun Life Refused to disclose No Financial Services Assurance Company contractual terms to Inc. of Canada, 2012 the defendant ONSC 2715 (Class Action) Claims Funding The Trustees of the 5% share capped at Yes International Labourers’ Pension $5,000,000 (before Fund of Central and class certification) Eastern Canada v. 7% share capped at Sino-Forest $10,000,000 (after Corporation, 2012 class certification) ONSC 2937 (To insure for any (Class Action) adverse costs awards) Harbour Litigation Bayens v. Kinross 7.5% share (before Yes Funding Ltd. Gold Corporation, class certification) 2013 ONSC 4974 10% share (after (Class Action) class certification) (To insure for any adverse costs awards up to $5,000,000) Vol. 40 Windsor Review of Legal and Social Issues 201
Redress Solutions Schenk v Valeant 30% share (if case No PLC Pharmaceuticals resolves in less than International Inc., 20 months) 2015 ONSC 3215 50% share (if case (Single Plaintiff) takes longer than 20 months to resolve) *Additional 5% share increase for every increase of 10% in the litigation budget (the court took issue with this Yes contractual term)
Amended: Share capped at 50% BridgePoint Berg v. Canadian Not defined Matter adjourned 2019 CanLIIDocs 3714 Financial Services Hockey League, Inc. 2016 ONSC 4466
(Class Action) IMF Bentham Houle v. St. Jude 20% share (if case No Limited Medical Inc., 2017 resolves in less than ONSC 5129 18 months) (Class Action) 22.5% share (if case takes 18-36 months to resolve) 25% share (if case takes more than 36 months to resolve) (Funder pays disbursements, costs awards, security for costs, plus 50% of lawyers’ fees)