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Join student editor, Jaime, for a discussion with Evan Vipond, a PhD Candidate in Gender, Feminist and Women’s Studies at York University, and Pierre Cloutier de Repentigny, an Assistant Professor at the Department of Law and Legal Studies of Carleton University. Jaime speaks with Evan and Pierre about their article in the Dalhousie Law Journal, titled, “Searching for Justice: Moving Towards a Trans Inclusive Model of Access to Justice in Canada.” The conversation raises important critiques about current access to justice approaches, but also provides insight into what structural changes are required to address access to justice issues facing trans people.

Listen to Episode 42 on Spotify.

Join Lan Keenan, student editor at the Dalhousie Law Journal, as they sit down with Associate Professor Sheila Wildeman of the Schulich School of Law at Dalhousie University for a thought-provoking discussion related to Sheila’s recent publication “Critical Pathways to Disability Decarceration” in the feminists@law journal. The conversation navigates the intricate intersections of critical disability studies and anti-carceral movements, inspired by pivotal discussions at the Law and Society Association’s Annual Meeting in May 2021, themed “Decarcerating Disability.”

Join student editor, Amelia, for a discussion with Professor Joanna Erdman of the Schulich School of Law and the McBain Chair in Health Law and Policy. Amelia and Professor Erdman talk about her chapter “Abortion At-Home and At-Law During a Pandemic” in COVID-19 and the Law: Disruption, Impact and Legacy, edited by Glenn Cohen, Abbe R. Gluck, Katherine Kraschel, Carmel Shachar (Cambridge University Press). The conversation touches on the central themes of the book chapter, connecting them to a recent string of prosecutions in the UK related to home abortions during the pandemic, public pushback, and the future of abortion law and policy.

 

Join student editor, Christian, for a discussion with Associate Professor and Associate Dean (Graduate Studies) Colin Jackson of the Schulich School of Law at Dalhousie University. Christian and Colin discuss his recent article in Perspectives on Tax Law & Policy, titled, “Articulation of OSP in Deans Knight”. The conversation covers current interpretation of the general anti-avoidance rule and touches on how imminent changes to the rule might shape legal disputes.

 

Join student editor, Charlie, for a discussion with Assistant Professor Anthony Rosborough of the Schulich School of Law and the Faculty of Computer Science at Dalhousie University. Charlie and Anthony talk about his recent article in the Berkeley Technology Law Journal, titled, “Toward a Canadian Right to Repair: Opportunities and Challenges.” The conversation underscores the importance of a right to repair for Canadians by approaching the issue through both an IP and competition lens.

 

Join student editor, Patricia Doiron, as she sits down with Dr. Agnieszka Doll to discuss the story of the legalization of psychedelics in Canada. Dr. Doll is a socio-legal scholar in law, health, science and regulation and an Assistant Professor at the Department of History and Sociology at the University of British Columbia Okanagan. The discussion looks at the network of actors who have played various yet intersecting roles in the process of psychedelic legalization in Canada, the Food and Drugs Act, and regulatory pathways which advocacy regulatory efforts have been streamlined in Canada.

Join student editor, Gavin, as he sits down with Professor Melisa Marsman of the Schulich School of Law to discuss her forthcoming article, “Good Deeds? A Critical Race Analysis of the Nova Scotia Land Titles Clarification Act.” Gavin and Melisa discuss the title insecurity faced by African Nova Scotian communities, and examine Nova Scotia’s efforts on land titles clarification through the lens of interest-convergence theory.

Goldilocks Pleading: Framing a “Just Right” Claim in Rights-based Climate Change Litigation in Canada

By: Professor Camille Cameron, K.C., Professor, Schulich School of Law, Dalhousie University; Riley Weyman, Pape Salter Teillet LLP, Toronto, Ontario; Claire Nicholson, JD 2024, Schulich School of Law, Dalhousie University. We thank the Canadian Foundation for Legal Research for their financial support for this project.

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 A current feature of climate change litigation in Canada is claims based on violations of the Canadian Charter of Rights and Freedoms (the “Charter”). We have written about these claims in Legal Hurdles and Pathways: the Evolution (Progress?) of Climate Change Adjudication in Canada, (2024) 47:2 Dal LJ, forthcoming, and available here. In that article, we examine various aspects of these claims and related jurisprudence, including justiciability and the applicability of sections 7 and 15 of the Charter.

In this blog, we will look at two procedural issues that arise in these cases, one relating to pleadings and the other to remedies.

The challenges of drafting appropriate pleadings in complex cases like Mathur¹ and La Rose² figure prominently in both judgments. In our analysis of Mathur, we describe the pleadings challenge the applicants faced as a “heads you lose, tails you lose” situation. The applicants had to plead narrowly to avoid dismissal for non-justiciability; this was a necessary strategic choice considering the state of the law in Canada regarding justiciability and the viability of a positive rights claim under section 7 of the Charter. The applicants framed their case narrowly with reference to Ontario’s Cap and Trade Cancellation Act, SO 2018, c 13 (the “CTCA”), and the emissions targets set pursuant to the CTCA (the “Target”), rather than as a broader positive rights case challenging a wide range of government action and inaction. This strategic choice allowed them to overcome the justiciability hurdle, but limited the scope of government action the court could consider when evaluating their Charter claims.³

Additionally, the Mathur applicants framed their section 7 argument as a negative rights challenge and only made positive rights arguments in the alternative. The court “disagree[d] with the Applicants that this is not a positive rights case” and analysed the applicants’ claim on the basis of positive rights. While the court found the applicants had made “a compelling case that climate change and the existential threat that it poses to human life and security of the person present ‘special circumstances’ that could justify the imposition of positive obligations under section 7,”⁴ the court determined that a new test would “very likely” be required to support such a positive rights claim.⁵ As the applicants’ primary position was that this was not a positive rights case, they did not address the issue of a new test for a positive rights claim in any detail, and the court was unwilling to establish a new test without argument on the matter. This was a hearing on the merits, and a pleadings amendment was not an option. The case was dismissed.

In La Rose, the claimants found themselves in a similar situation, although for different reasons. While in Mathur the applicants’ narrow pleadings limited their Charter claims’ success, in La Rose, at the hearing on the motion to strike, the Federal Court (“FC”) dismissed the case as non-justiciable, in part because the pleadings were “overly broad and diffuse.”⁶ On appeal, the Federal Court of Appeal (“FCA”) took a different approach. While it accepted that the pleadings were too broad and diffuse to meet “the threshold standard in constitutional litigation that specific laws or actions be targeted,” it found the claimants’ section 7 claims were justiciable and therefore gave them leave to amend the pleadings “to address this lack of focus.”⁷

The FCA in La Rose was alert to the risk that, just as Canada had argued (successfully) at the motion to strike that the pleadings lacked sufficient focus, they might at trial rely on an opposite argument that the pleadings, post-amendment, were now too narrow.⁸ They might, for example, argue that as there are foreign sources of GHG emissions, the narrow pleadings fail because there is no link between the harm and Canada’s conduct.⁹ The FCA described this as the possibility of a “shell game” and a “now you see me, now you don’t” situation, according to which a government could move to strike a claim on the basis that pleadings are too broad, or alternatively too narrow.¹⁰ The FCA identified as one response to this concern that the possibility of other causes of the alleged infringement does not rule out a constitutional challenge.¹¹

Another related procedural issue in La Rose relates to remedy. The claimants argued that their claims for relief—a series of declarations, mandatory orders, and supervision—were conventional legal remedies to correct breaches of section 7 of the Charter. On the motion to strike, the FC concluded that the remedies requested “overreached the institutional competence of the Court.”¹² This is another reason why the FC granted Canada’s motion to strike for non-justiciability. The FCA rejected this approach, cautioning that “overly focusing on remedies at the justiciability stage may place ‘undue and unwise limits’ on judicial oversight of the law.”¹³ Referring to the Khadr case, the FCA noted that declaratory relief is an option in such circumstances.¹⁴ In Boundaries of Judicial Review, Sossin gave a similar caution: “[w]here the concern over another branch of government relates to implementing a remedy, the doctrine of justiciability should not be invoked.”¹⁵ In Sossin’s view, courts are “best placed to determine rights and obligations through declaratory judgments which governments must then implement.”¹⁶

A variation on this approach to declaratory remedies in rights-based climate change claims was proposed by the applicants at the Mathur appeal hearing. That appeal was heard on January 15, 2024, by the Court of Appeal for Ontario. Counsel for the applicants proposed a “declaration plus” remedy, meaning that not only could the court declare that Ontario’s Target was inadequate and violated the applicants’ Charter rights, but it could also supervise Ontario’s steps to remedy the violation.¹⁷

The applicants relied for this proposed remedy on Professor Kent Roach, Remedies for Human Rights Violations: A Two Track Approach to Supra-national and Domestic Law.¹⁸ In his book, Professor Roach describes a world “rich in rights and poor in remedies.”¹⁹ The “declaration plus” remedy has the potential to strike a balance between ensuring that a court does not exceed its competence while at the same time providing a safeguard that the required institutional reform will happen.

Mathur and La Rose are developing and clarifying the law in what is for Canada a new type of claim. They provide valuable guidance to future potential claimants on how to frame their claims. For example, at least at this stage and subject to further appeals, the scope of justiciability in these kinds of climate change cases in Canada is now clearer. One possible outcome of this increased clarity is that courts might be less inclined to conflate remedies and justiciability at the motion to strike stage. Even more noteworthy in our view are some strong comments made by the Mathur and La Rose courts about section 7 of the Charter and positive rights. In both cases the courts suggested that the current and potential effects of climate change may present “special circumstances” that could justify the imposition of positive obligations under section 7 of the Charter.²⁰ Future potential claimants will need to grapple with how to properly frame a positive rights claim, including—as suggested by the Mathur court—potential modifications to the section 7 test to support such a claim.

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1. Mathur v His Majesty the King in Right of Ontario, 2023 ONSC 2316 [Mathur].
2. La Rose v Canada, 2023 FCA 241 [La Rose FCA].
3. Mathur, supra note 1 at para 120.
4. Ibid at para 138.
5. Ibid.
6. La Rose FCA, supra note 2 at para 46; La Rose v Canada, 2020 FC 1008 at paras 39-41 [La Rose FC].
7. La Rose FCA, supra note 2 at paras 130, 133. The section 15 Charter claim was not successful.
8. Ibid at para 133.
9. Ibid.
10. Ibid.
11. Ibid at para 134.
12. Ibid at para 46, citing La Rose FC, supra note 6 at paras 8-10, 40, 46.
13. La Rose FCA, supra note 2 at para 51.
14. Ibid at paras 46-48; Khadr v Canada (Prime Minister), 2010 SCC 3.
15. Lorne Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada, 2nd ed (Toronto: Carswell, 2012) at 247.
16. Ibid at 216.
17. This information is derived from the livestreamed appeal hearing.
18. Kent Roach, Remedies for Human Rights Violations: A Two Track Approach to Supra-national and Domestic Law (Cambridge, UK: Cambridge University Press, 2021).
19. For a summary of a roundtable discussion of Professor Roach’s proposed “declaration plus” remedy, see Duncan Crabtree, “Roundtable: Professor Kent Roach’s Vision for Human Rights Remedies,” (last visited 7 February 2024), online (blog): <ihrp.law.utoronto.ca/roundtable-professor-kent-roachs-vision-human-rights-remedies> [perma.cc/E7B8-FHPB].
20. La Rose FCA, supra note 2 at para 116; Mathur, supra note 1 at para 138.

 

 

The Feminist “Third Way”: Bypassing Animal Reform Law’s Personhood/Property Debate in Maneesha Deckha’s “Fifty Years of Taking Exception to Human Exceptionalism: The Feminist-Inspired Theoretical Diversification of Animal Law Amidst Enduring Themes”

By: Rachel De Graaf, Lewis & Clark Law School

For more on this topic, see Maneesha’s article in issue 46:1 of the Dalhousie Law Journal.

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Maneesha Deckha’s “Fifty Years of Taking Exception to Human Exceptionalism: The Feminist-Inspired Theoretical Diversification of Animal Law Amidst Enduring Themes,”¹ recently published in Dalhousie Law Journal’s special symposium volume 46(1), surveys the developmental course of Animal Reform Law (“ARL”) in English-speaking Canada over the past fifty years. Deckha elucidates the academic discourse that has grappled with formulating the most effective legal model to prompt positive change for animals. She demonstrates that recent feminist-inspired contributions have produced alternative legal frameworks that seek to displace human exceptionalism and anthropocentrism. The feminist contributions sidestep the personhood-property debate that is characteristic of earlier ARL discourse and carve out a “third way” that takes refuge in neither the personhood nor the property camp. This blog post summarizes these contributions.

The Personhood-Property Dilemma

The personhood-property debate has stalled momentum in ARL. Canadian law categorizes animals as property, and the personhood-property debate centres on whether reform should work within this categorization or seek to attain legal personhood for animals. Working within the property status would allow for welfarist changes aimed at improving the living conditions of animals. While such reforms are feasible in the current legal and political climate, they do not prevent new modes of animal oppression because they do not disrupt the current system. To eradicate this system of animal oppression, some ARL scholars have theorized that the law must change to view animals as rights-bearing legal subjects. That is, animals must obtain legal personhood. However, such a drastic change is unattainable in the current legal atmosphere.² Focus on this personhood-property dilemma in ARL distracts from possible alternative paths to animal-friendly legal reform.

The Feminist “Third Way”

Over the last twenty years, feminist theory has featured heavily in ARL reactions to the personhood-property debate. A mix of liberal, ecofeminist, postcolonial, and posthumanist strands of feminist analysis have produced alternative paths toward animal-friendly legal reform. Deckha articulates such feminist contributions, which tackle head-on ARL’s concern with sameness arguments that favour honourary humans—namely apes, cetaceans, and elephants. Feminist scholars have attempted to erase human benchmarks, instead highlighting alternative principles that should underlie the legal framework that reflects, defines, and structures the relationship between animals and humans. These feminist models are predicated on theories of capabilities, human duties, and social membership. They are not interested in attaining personhood for animals, but rather attempt to avoid using the human sameness logic and anthropocentrism that colour the personhood-property conversation. Shifting focus away from what makes animals like humans opens the door to more inclusive reform.

I) Capabilities Theory

The capabilities approach seeks to observe human development and to foster human flourishing by enabling people to carry out the functions that are important to human beings, such as play, rest, and companionship. In the context of ARL, capabilities theory prompts the question: what do animals need to flourish and thrive? It is not a matter of which practices cause the least harm but of which conditions are conducive to a dignified life. The elements of a dignified life will vary from being to being and from individual to individual. The capabilities approach that emphasizes dignity does not assimilate dignity and rights, nor does it seek to disturb animals’ legal classification as property. In this way, it sidesteps the personhood-property debate.

Some feminist scholars have noted limits to the dignities approach to capabilities theory, instead proffering an approach focused on vulnerability. This vulnerability model, termed “Equal Protection of Animals,” borrows from the concept of American “Equal Protection,” which discourages drawing distinctions between individuals based on differences that do not impact governmental objectives. Here, vulnerability refers to the changing needs of individuals during their lifetime, and a legal system that accounts for such fluid needs would necessarily be oriented around providing concrete means of meeting these needs. The vulnerability model acknowledges that animals, like humans, can be harmed. It acknowledges that current legal norms enable humans to commodify animals, thereby exacerbating their vulnerable state. Furthermore, this approach declines to grant animals who have more human-like capacities greater protections. Rather, it posits that the law should account for the basic capabilities of all sentient beings, and in this way, it firmly integrates American “Equal Protection” into the capabilities model.

II) The Duties-Based Model

Other feminist scholars have theorized an end to animal exploitation not by emphasizing proposed animal rights, but by emphasizing humans’ duty to care for animals. Scholars who subscribe to this orientation hold that even if the property status of animals is abolished, animals will not necessarily be protected from human exploitation. Imposing positive duties on humans to respect animals’ autonomy would ensure more expansive protection. Such a conferral of duties would not require the legal recognition of animal personhood.

The duties-based model questions the basis of human assumptions that they can rightly and justifiably cause harm to animals. As a result, sameness arguments and human benchmarks fall to the wayside. Proponents of the duties-based model do not assume that sentience is a prerequisite for care, as do many proponents of the capabilities approach. Drawing such lines—and employing anthropocentric reasoning to determine which animals matter more—disregards the imbricated nature of life on earth and the diversity found therein.

III) The Labour Model and Social Membership

A rights-favouring pathway has emerged over the past decade. Some feminist scholars have avoided the personhood-property dilemma by focusing heavily on animal rights. They justify such rights by pointing to animals’ innate moral worth and the family and labour contributions that they make to society. Scholars first proposed social membership rights in the context of companion animals but have since extended them to animals used for labour, that is, animals used for farming and research. Recognizing animals used for labour as “workers” in a social sense could enable recognition of the rights that attend worker status, thereby fostering a cooperative mindset in humans.

Some are critical of the labour model due to its inseverable link to capitalism and the associated fixation on mass output. Additionally, some proponents of the social membership model are alive to the possibility that such reasoning may assume that animals used for labour consent to their position as labourers when, in reality, it is impossible to know whether or not they consent to this role. However, they maintain that certain animal labour may foster animals’ ability to flourish. They argue that labour rights would entitle animals to certain protections by addressing issues such as working conditions and life after retirement.

Beingness

Deckha’s own postcolonial ecofeminist work in ARL casts a critical eye on the pride of place that the Canadian legal system gives to reason. The Canadian legal system employs the human benchmark of complex reasoning in order to dictate who deserves legal recognition and protection. Emphasizing reason so heavily makes it difficult to account for the diversity of animals. To counteract the exclusionary effects of such a benchmark, Deckha proposes the legal subjectivity of “beingness” for animals, which would provide protection by accounting for animals’ embodiment, vulnerability, and relationality. In her book, Animals as Legal Beings: Contesting Anthropocentric Legal Orders,³ Deckha expounds the alternative of beingness to personhood and property.

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1. Maneesha Deckha, “Fifty Years of Taking Exception to Human Exceptionalism: The Feminist-Inspired Theoretical Diversification of Animal Law Amidst Enduring Themes” (2023) 46:1 Dal LJ, online: <digitalcommons.schulichlaw.dal.ca/cgi/viewcontent.cgi?article=2220&context=dlj> [perma.cc/EHC2-U7UK].
2. Will Kymlicka, “Social Membership: Animal Law Beyond the Property/Personhood Impasse” (2017) 40:1 Dal LJ 123, at 124-125, online:<digitalcommons.schulichlaw.dal.ca/cgi/viewcontent.cgi?article=2087&context=dlj> [perma.cc/8DHS-K839].
3. Maneesha Deckha, Animals as Legal Beings: Contesting Anthropocentric Legal Orders (Toronto: University of Toronto Press, 2021).